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CASE NO.: Appeal (crl.)  819 of 1996

PETITIONER: Surinder Singh                                                         

RESPONDENT: The State of Punjab                                                     

DATE OF JUDGMENT: 08/08/2003

BENCH: Doraiswamy Raju & H. K. Sema.

JUDGMENT:

J U D G M E N T

D. RAJU, J.

       The appellant-accused No.1 and four others stood charged for offences  under Section 302 read with Sections 34, 201 and 511 of the Indian Penal Code  (for short ‘IPC’) for having allegedly committed the murder of one Santokh Singh  alias Sokha on 28.11.1985 at about 8-9 p.m.  One of them, by name Darshan  Singh said to be the Sarpanch of the village, could not be apprehended and  eluded arrest, necessitating in his being declared a Proclaimed Offender [for  short "P.O."], resulting in the trial before the learned Additional Sessions Judge,  Jalandhar, being effectively proceeded in Sessions Case No.8 of 1996 â\200\223  Sessions Trial No.11 of 1986 only as against the appellant and three others.  The  learned Trial Judge acquitted Bhajan Singh (A-3) and Baksha (A-4) on the  ground that there is no evidence against them for having played any role in the  occurrence, having regard to the evidence let in by the prosecution.  Though the  appellant and one Tarsem Singh (A-2) were convicted for the offence under  Section 302 read with Section 34, IPC, and sentenced to life imprisonment, in  addition to the payment of Rs.500/- as fine and jointly filed the appeal in this  Court having lost their appeal before the High Court of Punjab and Haryana at  Chandigarh in Criminal Appeal No.399-DB of 1986.  The second accused  appears to have died and on recording the same, his name was deleted from the  array of appellants by an order dated 10.05.1996, leaving the above appellant as  the sole appellant to pursue this appeal.  The necessary and relevant facts, as  projected by the prosecution, are as hereunder:-

       On 28.11.1986 at about 8.00 p.m., Harcharan Singh (PW-7) along with  Rattan Singh, Jhalman Singh and Avtar Singh were said to be present in the  chowk of Gurudwara, making arrangements for Bhog Ceremony of Gurudwara  Granth Sahib, which was to take place on 29.11.1985, when the deceased  Santokh Singh appears to have come from the side of Tubewell in a drunken  condition.  He was said to have proceeded towards the street leading to the  house of Darshan Singh (P.O.).  At that time, the appellant, Tarsem Singh and  Darshan Singh (P.O.) also seem to have come in a drunken condition.  The  deceased appears to have abused them in the name of sisters and remarked  that the accused had disturbed his family life and subsequently they wanted to  grab his land also.  On hearing the same, the accused gave pushes to the  deceased and PW-7 and others seem to have intervened and made the accused  let the deceased go free.  As per the further version of the prosecution, all the  accused thereafter dragged the deceased to the house of Darshan Singh (P.O.)  and after some time they heard the raula of ‘Mar Ditta, Mar Ditta’ from the house  of Darshan Singh (P.O.).  Since the outer door of the said house was open, PW- 7 along with Rattan Singh, Avtar Singh and Jhalman Singh went there and saw  that Darshan Singh (P.O.) was sitting on the chest of the deceased, who was  lying on the ground in supine position and Darshan Singh was in the act of  throttling the deceased, while the appellant, Surinder Singh, was said to be

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holding the deceased from his arms.  Tarsem Singh, the other accused, was  found to be giving fist blows to the deceased.  Harcharan Singh and others were  said to have pushed Darshan Singh away from the chest of deceased and the  appellant also released the deceased from his arms.  In the process at that  stage, Darshan Singh (P.O.) appears to have given 2-3 kick blows on the  testicles of the deceased stating that the deceased used to abuse daily and the  matter was to be settled once for all.  The appellant appears to have asked the  others to go out of the house of Darshan Singh as the matter was between the  brothers.  The appellant is said to be the real brother of the deceased and they  had one more brother by name Mohinder Singh, who was also said to be living  with the brothers in their house where the father of the deceased and the  appellant by name Darshan Singh was said to be also living with his wife.   Thereafter, they seem to have dispersed and on the next day it appears they  came to know that Santokh Singh died.  PW-7 and others seem to have  discussed the matter among themselves and thereafter PW-7 went to Police  Station at Banga and gave a Statement (Ext.P.2) before the Police, on the basis  of which a formal FIR (Ext. P.1) was said to have been recorded.

       During the course of investigation, inquest was said to have been  conducted and the body sent to post mortem.  Blood stained earth was also said  to have been lifted from the place of occurrence and a sketch of the place of  occurrence was also said to have been prepared.  After inquiring and recording  Statements from all concerned and arresting the accused and after receiving the  post mortem report in which it was stated by PW-1, the Doctor who conducted  the post mortem examination, that the death was due to Injury No.4 on the  testicles of the deceased resulting in neurogenic shock cardiac arrest, combined  with asphyxia due to injury to the neck by Injury No.1; that those injuries were  sufficient to cause death in the ordinary course of nature.  Thereupon, the charge  was laid as noticed supra and in the absence of Darshan Singh, the Sarpanch,  who was declared to be a Proclaimed Offender, the trial was continued and  completed against the other accused.  The learned Trial Judge was convinced of  the case of the prosecution so far as Accused Nos.1 and 2 are concerned and  convicted them, as noticed earlier, but acquitted the remaining two, A-3 and A-4.   Aggrieved, A-1 and A-2 pursued the matter on appeal before the High Court.   The Division Bench of the High Court concurred with the conclusions and  findings recorded by the learned Trial Judge and found no substantial merit in the  challenge made to the same, resulting in the dismissal of the appeal.  Hence, this  appeal.

       While matter stood thus, it appears that Darshan Singh, who could not be  initially traced, arrested and brought to trial along with the other four, was  arrested, interrogated and challaned before the Trial Judge to face trial under  Section 302, IPC, in Sessions Case No.98 of 1989 with reference to the original  FIR No.365 dated 29.11.1985.   During the course of this trial against Darshan  Singh, the said accused pleaded not guilty.  The prosecution seems to have  examined the Doctor, who conducted the post mortem, as PW-1 as in the case of  the earlier trial, and one Avtar Singh (PW-2), Rattan Singh (PW-3), Harcharan  Singh (PW-4) (who was PW-7 during the earlier trial), Madan Lal Sharda (PW-5)  and Sub-Inspector Jasbir Singh (PW-6).  The Doctor (PW-1) seems to have  spoken in the same manner as he did on the earlier occasion in the other trial.   Avtar Singh (PW-2) and Rattan Singh (PW-3), who were alleged to be also the  eyewitnesses to the occurrence along with PW-4, have not supported the  prosecution story to any extent whatsoever since they seem to have stated that  they do not know who committed the murder of Santokh Singh alias Sokha.  It is  useful to point out at this stage that Avtar Singh and Rattan Singh, who were  examined in the subsequent trial as PWs-2 and 3, were given up by the  prosecution in the earlier trial as having been won over by the accused.   Harcharan Singh, who was examined as PW-4 in the subsequent trial, seems to  have asserted that Darshan Singh, Ex-Sarpanch, who was one of the accused  and in whose house the occurrence was said to have taken place, was a person  different from Darshan Singh, who is facing the second trial.  On that premise of  his, he appears to have stated in the second trial that he never stated that the  accused, then facing the second trial as Darshan Singh, has caused the murder  of Santokh Singh alias Sokha.  All the said three private witnesses examined as  P.Ws were got declared as hostile and were cross-examined by the prosecution,

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with no favourable response whatsoever to support the case of the prosecution.   Jhalman Singh, who was said to be one of the eyewitnesses to the occurrence  and was examined as PW-8 in the earlier trial, appears to have been given up by  the prosecution in the second trial as having been won over by the accused.  In  the light of such turn of events and total lack of legally acceptable evidence to  implicate Darshan Singh during the second trial, the learned Additional Sessions  Judge, Jalandhar, by his judgment dated 4.3.1991, acquitted the said Darshan  Singh.

       Materials have been placed on record, with the leave granted on  10.5.1996 to the counsel for the appellant to ascertain information about the filing  of any appeal as against the acquittal of the co-accused Darshan Singh, in the  form of a communication dated 17.6.1996 said to have been received from the  office of the Advocate General of Punjab at Chandigarh that according to the  record maintained in that office the State of Punjab had not filed any appeal  against the accused Darshan Singh in the case noticed in the subject read in the  said letter as State Vs. Darshan Singh as FIR No.365 dated 29.11.1985 under  Section 302/34, IPC, decided by the learned Additional Sessions Judge,  Jalandhar, on 4.3.1991.   

       Before adverting to the relevant contentions of the parties, it is useful as  well as necessary to refer to the relevant summary of the evidence tendered by  the prosecution in the earlier trial, which resulted in the conviction of the  appellant and another.  As noticed earlier, PW-1 was the Doctor, who conducted  the post mortem examination.  He broadly spoke with certain essential details as  to the condition of the body when it was received for post mortem examination,  the nature of injuries found on external examination and after internal  examination and the reasonable cause, in his opinion, for the death of Santokh  Singh, as disclosed in the post mortem report (Ext. P.21).  Out of those who were  said to have witnessed the occurrence, Harcharan Singh and Jhalman Singh  were examined as PWs-7 and 8 and it is their evidence that become not only  relevant but gains importance, as alleged eyewitnesses to the occurrence.  The  other witnesses, PWs-2 to 6, were merely witnesses for various steps taken in  the course of investigation and PWs 10 and 11 were respectively the ASI and SI,  who conducted the investigation.  PW-7, as could be seen from the evidence  given by him, stated that he and the others, as noticed earlier, were standing  when the deceased came that side abusing the accused and about their  separating the deceased and the accused thereafter dragging them inside the  house of Darshan Singh and further as to what they saw inside the house.  So far  as the appellant was concerned when the deceased was lying down with  Darshan Singh sitting on his chest trying to throttle, he was said to be holding the  deceased from his arms.   Neither this witness nor PW-8 attributed any other  overt act of either beating the deceased or causing any injury of any kind on any  part of the body.  The witness spoke about the PWs pushing the accused  Darshan Singh away from the chest of the deceased and the appellant not only  releasing the deceased from his arms, but also asking the others to leave the  place since it was a matter purely between the brothers.  This witness spoke very  categorically that Darshan Singh was not only stating that the deceased used to  abuse daily and the matter was to be settled once for all, but apart from his sitting  on the chest and trying to throttle the deceased, gave 2-3 kick blows when he  was released from the chest of the deceased.  It appears that this witness is not  that well deposed towards Darshan Singh as could be seen from some of the  suggestions made in the cross-examination, but that does not by itself indicate  that he was talking any falsehood.  PW-8, the other witness to the occurrence,  though broadly concurred with the version spoken by PW-7, stated that Santokh  Singh came from the side of the Tubewell leading towards the house of Darshan  Singh, the accused, and when Darshan Singh and others came from the  opposite direction the deceased abused them and then all the three accused  caught hold of the deceased; that those, who were present including the  witnesses, released the deceased from the accused and that it is the deceased  who thereafter entered the house of Darshan Singh following the other accused.    As to what transpired inside the house also, this witness affirmed the version of  PW-7 about the appellant catching the deceased from his arms and Tarsem  Singh, the other accused, since dead, was found giving fist blows to the  deceased.  All these persons were said to have pushed Darshan Singh from the

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chest of the deceased and at that time the said Darshan Singh seems to have  given 4-5 kick blows on the testicles of the deceased.  This witness also deposed  that on the next day on coming to know the death of Santokh Singh during the  night, the others including this witness deputed PW-7 to report the matter to the  Police.  It is in the light of such evidence the learned Trial Judge, after concluding  the earlier trial and after examining the accused under Section 313, Cr. P.C.,  analysed the materials on record and came to the conclusion that the occurrence  took place inside the house of Darshan Singh (P.O.); that even after separation  of the deceased and the accused, when they quarreled outside, the accused took  the deceased inside the house of Darshan Singh and that, at any rate, the  deceased was found equally to have abused the others as deposed by these  witnesses.  The learned Trial Judge further, in the concluding portion after  noticing the evidence of PWs-7 and 8, has held as follows:- "23. The learned counsel submitted that Surinder  Singh accused was only holding the arms of the  deceased and that he be held guilty u/s 323 IPC  whereas Tarsem Singh was giving fist blows to the  deceased which resulted in fractures and that he  would be responsible u/s 325 IPC.  It was injury No.4  on the testicles, which resulted in neurogenic shock,  cardiac arrest, combined with asphyxia due to injury  to the neck.  I agree with the contention of the learned  counsel that since Darshan Singh (PO) is not facing  trial in this Court.  To any allegations alleged to him  are not to be adjudged at present.  In the opinion of  the doctor, the injury to the testicles combined with  asphyxia due to injury to the neck corresponding to  injury No.1 was collectively sufficient to cause death  and injury No.4 could be sufficient to cause death and  other injury are contributory.  But the earlier statement  of the doctor shows that this injury No.4 on the  testicles as also injury No.1, which caused asphyxia  had caused the death of Santokh Singh.  I hold  Tarsem Singh and Surinder Singh, accused guilty u/s  302/34 IPC and convict them accordingly."

       The consideration by the learned Trial Judge seems hardly to be an  objective one judiciously made before indicting a person guilty charged with a  serious offence of murder.

       The learned Judges of the Division Bench, after observing that they have  closely perused the evidence on record and the judgment recorded by the Trial  Court, were of the view that for the reasons stated in the judgment of the Trial  Court, the prosecution was able to establish the motive for the grouse against the  deceased and since, in their view, PWs-7 and 8 gave a consistent account as to  what happened at the time of occurrence, their evidence taken together with the  medical evidence supported the case of the prosecution and inasmuch as on the  totality of the facts, the inference of common intention was found irresistible,  conviction under Section 302 read with Section 34, IPC, was justified.

       The learned Senior Counsel for the appellant strenuously contended that  the action of the appellant in holding the arms of the deceased when he was  lying down with Darshan Singh sitting on his chest, could not justify any  conviction against him and, at any rate, conviction under Section 302 read with  Section 34, IPC.  The further submission very strongly made on behalf of the  appellant was that when the principal offender as could be seen to be, namely  Darshan Singh (P.O.), even as per the evidence of PWs-7 and 8 in the present  trial, which was earlier in point of time, who was attributed with all overt acts of  attempts to throttle as well as giving ultimately 3-5 kick blows on the testicles of  the deceased himself, came to be acquitted, it would not only be unjust but  contradiction in terms to convict the appellant for an offence under Section 302  read with Section 34, IPC.  Argued the learned counsel further that there cannot  be two contradictory and inconsistent findings in respect of the same occurrence  to somehow convict the appellant, unmindful of the insignificant role that was  attributed to the appellant, particularly in the absence of any premeditated

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scheme or design to kill the deceased.  Inviting our attention to the nature of  evidence actually let in, it was finally contended on behalf of the appellant that  the appellant could not be convicted for any offence and ought to have been  acquitted, in toto.

       The learned counsel for the respondent-State also invited our attention to  the relevant portions of the evidence and the judgments rendered by the High  Court in the present case and those rendered by the learned Additional Sessions  Judge, Jalandhar, both in the present case and the one after the subsequent  trial, in respect of Darshan Singh.

       We have carefully considered the submissions of the learned counsel  appearing on either side.  That in a criminal act, where several persons are  engaged or concerned in the commission of it, they may be guilty of different  offences by means of their own acts.  No doubt when such criminal act is done  by several persons in furtherance of the common intention of all, each of such  persons is liable for that act in the same manner as if it were done by him alone.   If an offence is committed by any member of an "unlawful assembly" in  prosecution of the common object of that assembly or such as the members of  that assembly knew to be likely to be committed in prosecution of that object,  every person who, at the time of the committing of that offence, is a member of  the same assembly, is guilty of that offence.  The fact that any one of them may  at times even stood wrongly acquitted and no appeal was filed by the State  against such acquittal does not ipso facto impede the conviction of the other(s)  accused.  Equally the conviction of one such does not automatically result in the  conviction of every one said to be involved in the occurrence, even dehors their  actual role, the general and basic principle of criminal liability being that only that  person, who commits the crime, would be held guilty and punished, except in  cases where the concept of vicarious liability is recognized under law â\200\223 to that  extent and that too subject to the conditions therefor being strictly shown to exist  in a given case.

       So far as the case on hand is concerned, Surinder Singh (Accused No.1)  and Tarsem Singh (Accused No.2), since dead, were convicted under Section  302 with the assistance of Section 34 for causing the death of Santokh Singh @  Sokha â\200\223 the brother of Accused No.1.  The positive evidence firmly stated by  PW-7 and PW-8 regarding the role of the appellant is that he was holding the  hands of the deceased, when he was found lying down and Darshan Singh,  Sarpanch, who was proclaimed offender, sat on the chest of the deceased and  was said to be trying to throttle him.  PW-7 was said to have pushed Darshan  Singh away from the chest of the deceased and the appellant also seemed to  have released the hands held by him.  It was at that stage Darshan Singh was  said to have given 3-5 kicks on the testicles of the deceased.  The death does  not seem to have been instantaneous and the evidence on record is that the  occurrence was at 8-9 p.m., but the death occurred late in the night in his house.    As per the evidence on record, accused Darshan Singh only was said to have  played the major role and caused primarily the fatal injuries on the testicles and  even the injury found on the neck or on the chest.  The kicks given on the  testicles were after he was pushed away by PW-7 from the chest and after the  present appellant also released his hands, which the appellant was initially seen  to be holding.  The said Darshan Singh was a proclaimed offender during the first  trial with which we are directly concerned, and in the second trial of Darshan  Singh after he was apprehended, the court acquitted him, in spite of examining  the very witnesses PW-7 and PW-8, in addition to Avtar Singh and Rattan Singh  who were stated to be the other eye witnesses to the occurrence.  So far as the  appellant is concerned, it could not be held that his holding the hands of the  deceased facilitated Darshan Singh to inflict any of the fatal injuries and kicks on  the testicles were said to have given and could normally be possible also to be  given only after Darshan Singh was pushed away from the chest of the deceased  by PW-7, when it is stated by the witnesses that simultaneously the hands of the  deceased also came to be released by the appellant.  The acquittal of Darshan  Singh has attained finality in the absence of any appeal by the State against his  acquittal.  The appellant cannot, therefore, be indicted as having in any manner  been responsible or having rendered it possible for Darshan Singh to inflict the  fatal injuries.  Section 34, IPC, seems to have been resorted to in case

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mechanically and merely because, the assault was by the accused in a group, in  the manner spoken to by the witnesses and not on account of any other  circumstance indicative of any common intention or premeditation to commit  such an act.  In the teeth of the acquittal of Darshan Singh, the main accused,  and in the absence of any concrete evidence to prove common intention to kill,  the appellant is entitled to be extended the benefit of doubt and exonerated.

       For the foregoing reasons, we set aside the conviction of the appellant,  accused No.1.  The appeal in so far as he is concerned shall stand allowed.  The  bail bonds shall stand discharged.