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PETITIONER: RAMA SHANKAR

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       03/09/1996

BENCH: KURDUKAR S.P. (J) BENCH: KURDUKAR S.P. (J) MUKHERJEE M.K. (J)

CITATION:  JT 1996 (7)   651        1996 SCALE  (6)326

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 349 OF 1996 Ranbir Singh & Ors. V. State of Haryana                       J U D G M E N T S.P. KURDUKAR, J.      A small  incident of  taking a  turn without giving any signal by  the driver of the three wheeler had initially led to a  wordy exchange  between Raghbir  Singh (PW  2) and his brother Satbir who were riding on a scooter and Ranbir Singh (A-1) who  was driving  the three  wheeler. Ordinarily, this incident should  have ended  at that stage but Raghbir Singh (PW 2)  after reaching  the Forest Department at Hisar where he was  working, came  back with his friends to the place of first incident  and thereafter  again there  was exchange of hot words  between these two groups which led to the assault by Ranbir Singh causing death of Ajit Singh. 2.   The  broad   facts  of  the  prosecution  case  may  be summarised as under:      On 10th  May, 1991 at about 7.30 a.m. Raghbir Singh (PW 2)  and   his  brother  Satbir  were  going  to  the  Forest Department at  Hisar on a scooter. At the same time, a three wheeler driven  by Ranbir Singh (A-1) was going ahead of the scooter. A-1  without giving  any indication  took  a  right turn; however,  Raghbir Singh  (PW 2) skillfully avoided the accident with  great difficulty.  There was  an  altercation between the  scooterist and  the driver of the three wheeler who called  his brother  Rama Shankar (A-2) and Vinod (A-3). However, this  incident  ended  there  only  and  thereafter scooterist left for their office. This incident was reported to Umed  Singh, the  officer in  the Forest  Department  and thereafter Raghbir  Singh (PW  2), Ramphal  (PW 3)  and Umed Singh came to the place where the first incident took place. All the three accused (appellants) were then standing at the place of  Ist  incident.  Raghbir  Singh  (PW  2),  and  his

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companions advised A-1 to drive the three wheeler cautiously so that  accident is  avoided. In  the mean time, Ajit Singh (since deceased),  a Peon  in the Forest Department, reached there. Both  the groups then got involved in heated exchange of words  and thereafter  A-1 suddenly  inflicted two  knife blows on  Ajit Singh  who resultantly  fell down. A-2 gave a lathi blow  on Raghbir  Singh (PW  2) whereas  A-3 inflicted knife blow  on Ram  Phal (PW 3). The injured raised an alarm whereupon Jaswant  Singh came  there with  his car.  All the accused in  the mean  time fled  away  with  their  weapons. Raghbir Singh  (PW 2)  and Ramphal  (PW 3) who had sustained the injuries  were removed  to the  hospital at  Hisar. Ajit Singh died  on the  spot. Statement  of Raghbir Singh (PW 2) recorded at  about 11.45  a.m. was  treated as  an FIR.  The Investigating Officer,  thereafter  went  to  the  place  of incident and  held the inquest panchnama, spot panchnama and recorded  the   statements  of  injured  persons  and  other witnesses. The  accused on 11th May, 1991 surrendered in the Court and  they were  formally shown  arrested on  13th May, 1991. After  completing the necessary investigation, all the three accused  were put up for trial for offences punishable under Sections  302, 302/34, 384, 324/34,323 and 323/34 IPC. To be  more precise,  A-1 was charged under Section 302, A-2 and A-3 under Section 302/34, A-3 under Section 307, A-1 and A-2 under  Section 307/34 IPC, A-2 under Section 323 IPC and A-1 and A-3 under Section 323/34 of the Indian Penal Code.      All the three accused pleaded not guilty to the charges and claimed to be tried. 3.   The prosecution in support of its case examined as many as nine witnesses. Of them, Raghbir Singh (PW 2) and Ramphal (PW 3)  are the  injured eye  witnesses. Dr. S.K.Modi (PW 1) held the  autopsy on  the dead  body of  Ajit Singh. He also examined the two injured eye witnesses on 10th May, 1991 and issued  the  injury  certificates  thereof.  There  is  also evidence relating  to the  disclosure statement  made by A-2 which led to the recovery of a knife under Section 27 of the Evidence Act. 4.   The learned  Sessions Judge, Hisar on appraisal of oral and documentary evidence on record by his judgment and order dated 8th  December, 1992  found A-1 guilty of an offence of murder of  Ajit Singh  punishable under  Section 302  of the Indian Penal Code. As also for the same murder found A-2 and A-3 guilty  with the  aid of  Section 34 of the Indian Penal Code and  convicted them for life imprisonment and a fine of Rs.2,000/-. In  default, to  undergo RI  for six months. All the three  accused ware  also found  guilty for  an  offence punishable  under   Sections  324/34   and  323/34  IPC  and sentenced them  to suffer  RI for  one year  and six  months respectively. All substantive sentences were directed to run concurrently.      Aggrieved  by  the  aforesaid  judgment  and  order  of conviction passed  by learned  Sessions Judge, all the three accused preferred  a criminal  appeal before  the  Punjab  & Haryana High Court at Chandigarh. The learned Division Bench vide its  judgment and  order dated July 20, 1995, dismissed the said  appeal. It  is against  this  judgment  and  order passed by  the High Court, A-2 has filed Criminal Appeal No. 348/96 whereas  A-1 and  A-3 have  filed Criminal Appeal No. 349/96. Since  both these  appeals arise  out  of  a  common judgment passed  by the  Punjab &  Haryana High  Court, they were heard  together and  are  being  disposed  of  by  this judgment. 5.   At the  outset, it may be stated that learned Advocates appearing in support of both these appeals did not and could not challenge  the fact  that Ajit  Singh died  a  homicidal

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death. We have gone through the evidence of Dr. S.K.Modi (PW 1) and  the  post  mortem  examination  report  and  we  are satisfied that  the cause of death given by Dr. S.K.Modi (PW 1) suffers  from no  infirmity. Both  the courts below have, therefore, rightly  held that  Ajit Singh  died a  homicidal death because  of  injuries  sustained  by  him  during  the incident that took place on 10th May, 1991. 6.   As stated  earlier, the  prosecution  case  principally rested on  the evidence  of two injured eye witnesses namely Raghbir Singh  (PW 2) and Ram Phal (PW 3). Raghbir Singh (PW 2) is  the de  facto  informant  who  in  his  evidence  has narrated the  first incident  where he  and Satbir had wordy quarrel with Ranbir Singh (A-1) who took a right turn of his three wheeler  without giving  any  indication/signal  which could have  led to  a serious  accident but for his applying the brakes,  luckily saved therefrom. At that point of time, A-2 and  A-3 also  came to  the place  of incident.  Nothing untoward happened  at that  stage. Raghbir  Singh (PW 2) and Satbir thereafter  went to  the office  of Forest Department and told  about the  incident to  the superior  officer Umed Singh. Raghbir  Singh (PW 2) then stated that he, Satbir and Umed Singh  came to the place of incident. In the mean time, Ajit Singh  (since deceased)  also joined  them.  There  was again heated  exchange of  words between  the two groups and suddenly A-1 took out the knife and assaulted Ajit Singh. He then stated  that Rama  Shankar (A-2)  gave a  lathi blow to him. Vinod  (A-3) assaulted  Ram  Phal  (PW  3)  causing  an incised injury.  Ram Phal (PW 3) has substantially supported the evidence  of Raghbir Singh (PW 2) in identical terms. In our opinion, it is not necessary to reproduce the same. 7.   It is  true that  both the courts below have attributed common intention  to A-2 and A-3 for the substantive offence of murder  of Ajit Singh punishable under Section 302 of the Indian Penal  Code. Ordinarily,  in an  appeal under article 136 of  the Constitution,  this Court would not be justified in interfering  with the  finding of  fact.  However,  after going through  the impugned judgment as well as the judgment rendered by  the  Sessions  Judge,  Hisar,  we  are  of  the considered view  that both the courts below have committed a material  illegality   and  error   while  appreciating  the evidence of  Raghbir Singh  (PW 2)  and Ramphal (PW 3) while attributing common intention to A-2 and A-3 under Section 34 of the Indian Penal Code in respect of murder of Ajit Singh. As indicated  above, Raghbir Singh (PW 2) after going to his office (Forest  Department) narrated  incident to Umed Singh and thereafter  came to the place cf incident alongwith them and then  the quarrel  started which  had ended in murderous assault on  Ajit Singh.  Ajit Singh  was not  a party to the first incident  but he joined on his own at a later stage in the second  incident. There  is nothing  in the  evidence of either Raghbir  Singh (PW  2) or  Ramphal (PW 3) which would enable the Court to draw an inference of common intention on the part  of A-2  and A-3 to commit murder of Ajit Singh. It is the  complainant party  which came  on its own. It is not the case  of any  of the  injured eye witnesses that all the three accused  were going  towards the  Forest Office  where Raghbir Singh  (PW 2)  was working  to seek his explanation. All the  three accused  were standing  at the place of first incident. It  was only  the complainant party which returned thereafter had  wordy exchange between them. All of a sudden A-1 caused  stab injuries  to Ajit Singh. The first incident itself happened without any premeditation. Infact A-2 and A- 3 joined  A-1 at a later stage. It is in these circumstances if the  evidence of  Raghbir Singh (PW 2) and Ramphal (PW 3) is scrutinized, it is very difficult to come to a conclusion

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that A-2  and A-3  shared the  common intention  with A-1 to commit the  murder of  Ajit Singh.  It is  well settled that common intention  can develop  on the spur of the moment but the prosecution  evidence is  too  short  to  come  to  that conclusion. It  ever the  case of  both  these  injured  eye witnesses that  the accused  persons had  thrown a challenge and therefore,  they  were  waiting  at  the  place  of  Ist incident. It  was the  complainant party  which came  to the place of  incident within  a short  time with Umed Singh and thereafter  Ajit   Singh  joined   them.  It   is  in  these circumstances we  are of  the considered view that no common intention as  regards committing  the murder  of Ajit  Singh could be  attributed to A-2 and A-3. This vital circumstance it appears  was not brought to the notice of the High Court. We, therefore,  hold that  there was  no common intention on the part  of A-2 and A-3 to commit the murder of Ajit Singh. Resultantly, it  must follow  that conviction of A-2 and A-3 under Section  302 read  with 34 of the Indian Penal Code is unsustainable. 8.   Learned counsel  for the  A-1, however, urged that even A-1 also  could not  be convicted  under Section  302 of the Indian Penal Code. He urged that the quarrel between the two groups took  place all of a sudden without any premeditation or pre-concert  and, therefore,  the conviction of A-1 under Section 302 of the Indian Penal Code is unsustainable and at the most,  he could be held liable under Section 304 part II of the  Indian Penal  Code. In  support of  this contention, learned counsel  urged that deceased had no concern with the quarrel and  therefore, there was no intention to commit his murder. We  are not impressed by this submission because A-1 infact assaulted  Ajit Singh with a knife on a vital part of the body  and as  a result thereof, he died on the spot. We, therefore, see  no merit  in the contention raised on behalf of  A-1.  The  conviction  of  the  A-1  under  Section  302 simpliciter recorded  by the courts below is legal and calls for no interference. 9.    Learned counsel for the appellants while assailing the conviction of  the appellants under section 324 read with 34 and Section  383 read  with 34  of the Indian Penal Code for causing injuries  to Raghbir Singh (PW 2) and Ramphal (PW 3) urged that both these witnesses have deposed falsely against them to  take revenge  of the  first incident.  It was  then urged that assuming that the appellants were guilty of these offences, the  sentences awarded  to them  are too harsh and disproportionate  and   be  altered   to   the   period   of imprisonment already  undergone. We  have given  our careful thought to this submission and in our opinion, having regard to the  nature of injuries sustained by Raghbir Singh (PW 2) and Ramphal (PW 3), no reduction in the sentences for any of these appellants is called for. 10.   In  the result,  Criminal Appeal  No. 348/96 is partly allowed. Conviction  of A-2  under  Section  302/34  of  the Indian Penal  Code is  quashed and  set aside.  However, his conviction under  Section 383  read with  34 of  tho  Indian Penal Code is confirmed.      Criminal Appeal  No. 349/96  filed by  A-1 and  A-3  is partly allowed  to the  extent that  the conviction  of  A-3 under Section 302/34 of the Indian Penal Code is quashed and set aside.  However, conviction t A-3 under Section 324 read with 34  of IPC is confirmed. The appeal of Ranbir Singh (A- 1) against his convictions and sentences under Sections 302, 324 read  with 34  and S.S  read with 34 of the Indian Penal Code are  confirmed. The  appellants  who  are  on  bail  to surrender to  their bailbonds  to serve  out  the  remaining period of sentences.

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