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CASE NO.: Appeal (crl.)  335 of 2006

PETITIONER: Rotash

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 06/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       Appellant is before us aggrieved by and dissatisfied with a judgment  of conviction and sentence passed by a Division Bench of Rajasthan High  Court, Bench at Jaipur in D.B. Criminal Appeal No.765 of 1999.  He was  proceeded against for commission of murder along with one Pitram, his  brother-in-law.  Pitram, accused No. 1 (A.1), Mali Ram, the first informant  (P.W.1) and Moosaram are brothers.  Mooli Devi is their mother.  A First  Information Report was lodged at about 9.30 p.m. on 13.10.1996 in relation  to an incident which took place at the ’Dhani’ of Mali Ram’s father, which is  situated on Bhudoli Road, whereat, allegedly, the said Pitram committed  murder of the said Moosaram at about 8 p.m. on the same day.

       P.W.1, in his First Information Report, alleged that he and the  deceased carried some household articles from town Neem Ka Thana and  went to their father’s ’Dhani’.  They stopped there, talked to their mother  and left for their ’Dhani at Lambawali.  When they reached the field of  ’Darogas’, they heard shouting of their mother, whereupon they started  running, sensing that they would be attacked.  Moosaram was then attacked  by 4-5 persons.  It was alleged that Pitram, A.1, his brother, who at the  relevant time had been working at Jaisalmer in Border Security Force,  having  ’bakda’ in his hand attacked the deceased, as a result whereof he fell  down, whereafter his associates started assaulting him with respective  weapons in their hands.  Moosaram shouted at his brother to save him.  He  ran and hid himself in the crops.  The accused and his associates searched  for him with torches in their hands, but because of shoutings of Moosaram  they fled away.   

       He reached the police station immediately after the occurrence.  The  investigation was started by P.W.17-Surendra Kumar Bhati.  It is not in  dispute that P.W.6-Mooli Devi, mother of the deceased as well had sustained  injuries.  The Investigating Officer came to the place of occurrence and  prepared a rough site plan on the basis whereof later a scaled site plan was  prepared.  He collected blood stained soil and ordinary soil from the place of  occurrence, prepared memo, obtained signatures of the witnesses thereupon.   He also prepared Panchayatnama of the deceased Moosaram.  He also seized  the blood stained clothes of Moosaram.  He recorded the statements of  witnesses Mahavir, Mali Ram, Mooli Devi and Khyali Ram on the same  day.  It appears that apart from P.Ws. 1 and 2, two other witnesses, namely,  P.W.8-Khyaliram and P.W.9-Sarjeet Singh were eye-witnesses.  However,  their statements were recorded later.   

       The motive for commission of the said offence by Pitram was said to  be that Moosaram allegedly used to harass his wife.  

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       While Appellant along with the said Pitram was convicted for  commission of an offence under Section 302/34 Indian Penal Code, other  accused, who were four in number, were acquitted, inter alia, on the premise  that they had not been properly identified and no individual overt acts was  attributed to them.

       Accused No.1 is not before us.  He, thus, has accepted the verdict.   

       Mr. Uday Umesh Lalit, learned Senior counsel appearing on behalf of  Appellant would submit :-

       (i)     Appellant was known to the informant and having regard to the  fact that he could identify the assailants of his brother, there was no reason  as to why he was not named;

       (ii)    The mother of the deceased, although named Appellant in her  statement under Section 161 of the Code of Criminal Procedure Code, 1973  before the Investigating Officer, she did not attribute any overt act on his  part.

       (iii)   Presence of P.Ws. 8-Khyaliram and P.W.9-Sarjeet Singh at the  scene of occurrence was highly doubtful as their statements were recorded  by the police after a few days.   

       It was pointed out that P.W.8 at one place of his deposition alleged  that his statement was taken by the police 5-7 days after the incidence and at  another place stated that the same was 10 to 11 days thereafter.  The  statement of Sarjeet Singh, P.W.9, who claims himself to be an eye-witness,  was also not recorded for three days despite the fact that he was a witness to  the Panchayatnama of inquest of the deceased.   

       (iv)    All the witnesses being related to the deceased, were highly  interested and the courts below committed a serious error in relying upon  their statements.

       Mr. Naveen Kumar Singh, learned counsel appearing on behalf of the  State, on the other hand, would submit that P.W.1 in his deposition had  asserted that somebody else has recorded his statement at the police station,  who might have committed an error in not recording the fact that Appellant  herein also took part in the commission of murder of the deceased and  further more, having regard to the fact that in the statements of both P.Ws. 1  and 6, which were recorded by the Investigating Officer on 13th October,  1996 itself, he was named, it cannot be said to be a case where omission to  name Appellant would be fatal to the prosecution case.  It was pointed out  that at the instance of Appellant the Investigating Officer has recovered an  iron pipe, with which he is to have assaulted the deceased as also Mooli  Devi-P.W.6.     

       Homicidal death of Moosaram is not in dispute.  The contents of  autopsy report are also not in dispute.  As indicated hereinbefore, now the  conviction of Pitram, the brother-in-law of Appellant as the main assailant of  the deceased, is also not in dispute.  There cannot be furthermore any doubt  whatsoever that ordinarily it was expected that P.W.1 would disclose the  name of the assailants in the First Information Report, but the Court, in a  case of this nature, must take into consideration the entire circumstances  surrounding the incidence and may not start with a presumption that he is  not a truthful witness.  Appellant and the deceased came to their father’s  ’Dhani’ with some household articles.  They were proceeding to their  ’Dhani’ therewith.  Pitram, the brother of the deceased and P.W.1, was  working in the Border security Force.  According to him, the deceased had  been harassing his wife.  Appellant herein, being the brother-in-law of the  accused No.1 must have knowledge thereabout.  It is, therefore, wholly  unlikely that he would be falsely implicated.

       P.W.1 ran for his life as he was also about to be assaulted.  He hid

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himself in the agricultural field.  The accused persons searched for him but  could not trace him.  According to him, his brother was attacked by the  assailants at about 8 p.m.  The police station is said to be situated at a  distance of five kilometers from the place of occurrence.  The entire incident  must have taken some time to take place.  He must have, thus, keeping in  view the fact situation obtaining herein, discovered that his brother had  expired due to the injuries received by him round about 8.30 p.m.  He went  to the police station and if his statement is to be believed, ’Fard Bayan’ was  recorded by a person who was sitting outside the police station.  He handed  it over to the Officer In-charge of the Neem Ka Thana police station after his  statement was reduced to writing by the said person.

       We have perused the First Information Report.  Therein even no  statement had even been made that P.W.6 (Mooli Devi) had suffered serious  injuries.  She, indisputably, was brought to the hospital.  She had been  receiving treatment by P.W.12-Dr. Pramod Kumar Sharma.  We have  noticed hereinbefore at some length that the Investigating Officer had gone  to the place of occurrence immediately thereafter, carried out the preliminary  investigation and recorded the statements of witnesses.  He must have come  back to the town and recorded the statement of Mooli Devi.  It has not been  disputed before us that P.W.1 and P.W.6 in their statements before the police  categorically named Appellant as one of the persons accompanying Pitram  and other accused persons.  There may be some discrepancies in their  statements as regards the actual overt act played by him, but the same, in our  opinion, is not of much significance.  Whereas P.W.6 in his statement before  the police did not allege any overt act on his part, she did so in her statement  in the Court.  Similarly, P.W.1, as noticed hereinbefore, although had not  named Appellant in his First Information Report, but both in his statement  before the police as also in his statement before the Court, not only named  him but attributed specific overt acts on his part.   

       We, for the purpose of this case, may ignore the evidence of P.W.8  and P.W.9, who may or may not be present at the scene of occurrence, but  their presence in the village probably cannot be disputed as admittedly  P.W.9 was a witness to the inquest report of the deceased which must have  taken place within 2 to 2= hours from the time of incident.         Appellant could be arrested only on 26th October, 1996.         The First Information Report, as is well known, is not an encyclopedia  of the entire case.  It need not contain all the details.  We, however, although  did not intend to ignore the importance of naming of an accused in the First  Information Report, but herein we have seen that he had been named in the  earliest possible opportunity.  Even assuming that P.W.1 did not name him  in the First Information Report, we do not find any reason to disbelieve the  statement of Mooli Devi-P.W.6.  The question is as to whether a person was  implicated by way of an after-thought or not must be judged having regard  to the entire factual scenario obtaining in the case.  P.W.6 received as many  as four injuries.  A lacerated wound with diffuse swelling was found on her  right hand, which was caused by a hard and blunt substance.  She had  diffuse swelling on her left leg as also on knee, which were again caused by  a hard and blunt substance.  There was another lacerated wound on her  person.  She had also complained of pain and tenderness on her chest.

       The accused No.1 as also Appellant were stated to be carrying iron  pipes.  The deceased also suffered a large number of injuries, which are as  under :

"1.     Lacerated wound 6 x 2 cm. x bone deep-chin-         blunt-obliquely placed.

2.      Lacerated wound 3 x 1.5 x 1 cm. upper lip-blunt.

3.      Bruise 10 x 3 cm. Lt. Face obliquely placed.

4.      Lacerated wound 10 x 2 cm. x bone deep.  Lt.  Temporoparito-occipital region semi curved in

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shape blunt.

5.      Lacerated wound 12 x 3 x 0.5 cm. Lt. Leg blunt  obliquely placed.

6.      Lacerated wound 2 x 1 cm. Rt. Leg-blunt.

7.      Abraison 2 x 1 cm. Lt. Thigh.

8.      Bruise-three in number (A) 10 x 2 cm. (B) 8 x 2  (C) 4 x 2 cm.  Horizontally placed on Lt. Thigh  parallel to each other at 2 cms.  Aparat.  All  bruises red in colour."                  

       Some of the injuries indisputably could be caused only by hard and  blunt substance like an iron pipe.

       A number of injuries suffered by the deceased clearly point out that it  could not have been inflicted by one person.  Common intention on the part  of the accused No.1 together with others to commit the murder of Moosaram  can, therefore, be inferred.

       There is no uniform inflexible rule for applying the principle of  common intention.  The inference therefor must be drawn from the totality  of the facts and circumstances of each case.  It is difficult to find out two  similar cases.          

       Whether the accused formed common intention or not is essentially a  question of fact.

       P.W.6 in her evidence stated :

"...They stayed for about 20 minutes with me, when they  had left Pitram came.  He had come in a vehicle like car  which he parked near his house.  Pitram had come along  with his brother in law Rohtash and 2-4 another persons.   He asked me where Maaliram and Musaram were.  I told  him that they have gone home.  When they had come  they were carrying iron rods.  Pitram asked me to tell the  truth otherwise he would beat me.  I told him they have  gone to dhadi (sic).  He said let us go to their dhadi we  will beat them there.  I shouted loudly run away people  are coming to kill you.  When I shouted at that time  Musaram and Maaliram were going to Bansidhar’s field.   Pitram etc. ran after them and I ran after them Maaliram  ran away don’t know where but Musaram was  surrounded by them and they caught him.  Pitram hit  Musaram first on the head with a pipe and then Rohtash  hit Musaram with a pipe and then the rest of the accused  started beating him.  I can only recognize Pitram and  Rohtash in court.  The witness recognized Pitram and  Rohtash correctly in court.  On seeing them beating  Musaram I fell on top of him then too they did not stop  beating.  Then these people ran away and Musaram died  on the spot.  I had also been medically examined and my  X-ray was taken.  Musaram was taken to hospital by  Maaliram, Sarjeet and Khyali."   

       It is, therefore, evident that she attributed the acts of assault not only  on the part of Pitram but upon Rohtash also.  Her statement that she found  her son being assaulted, fell on the top of him but still they did not stop  beating, is significant.  She was an injured witness.  When she gave her  statements before the police, she must have been in great pains.

       One of the accused was her own son.  Appellant is his brother-in-law.

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       Ordinarily, a mother would not involve her son and that too, on a  charge of murder.

       If the conviction and sentence awarded to Pitram is not assailable, the  question which arises for consideration is as to whether Appellant can be  found guilty for sharing common intention to commit the said crime along  with Pitram.  Intention on the part of the accused to attract the principle of  joint liability in the doing of a criminal act must be inferred keeping in view  the fact situation involving in this case.  All the accused came at the same  time.  Each one of them was variously armed.  They evidently came with an  intention to commit some crime.  Their target was known.  They did not  even think of not committing the crime of murder of a son in front of his  mother.  He was assaulted indiscriminately.  The mother tried to save her  son.  She fell on his body.  She in the process also suffered grievous injuries.   On a conjoint reading of the statement made by PWs. 1 and 6, it is evident  that more than one person took part in the acts of actual assault.

       Not only they killed Pitram and assaulted his mother, they also chased  PW-1.  He had to hide himself in the agricultural field.  According to him,  the accused persons were searching him with the aid of the torch.  He could  not be found.  The intention of a person having a common intention to  commit the crime must be judged from the totality of the circumstances.

       It is not a case where there could not be a prior arrangement.  Had  there been no prior arrangement, they could not have reached the place of  occurrence together in a vehicle.  They would not be carrying any weapon.   They would not have acted conjointly in perpetrating the crime.  They would  not have made searches together for PW-1 and fled away together.  The  prior-concert on the part of the accused may be determined having regard to  the subsequent conduct of the accused.  Thus, prior-concert in the instant  case has also been proved, inter alia, by subsequent conduct.

       Subject to just exceptions, it may be difficult to have direct proof of  prior-concert but absence of proof of direct evidence necessarily lead to  inference that may be sufficient to prove sharing of common intention by the  accused.

       In Suresh & Anr. vs. State of U.P. [(2001) 3 SCC 673], this Court  held :         "Thus to attract Section 34 IPC two postulates are  indispensable : (1) The criminal act (consisting of a series  of acts) should have been done, not by one person, but  more than one person. (2) Doing of every such individual  act cumulatively resulting in the commission of criminal  offence should have been in furtherance of the common  intention of all such persons.         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 presupposes prior concert, which  requires a prearranged plan of the accused participating  in an offence. Such a preconcert or preplanning 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 the moment. The existence

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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."         In Lallan Rai & Ors. vs. State of Bihar [(2003) 1 SCC 268], it has  been held :         "A plain look at the statute reveals that the essence  of Section 34 is simultaneous consensus of the mind of  persons participating in the criminal action to bring about  a particular result. It is trite to record that such consensus  can be developed at the spot. The observations above  obtain support from the decision of this Court in  Ramaswami Ayyangar  v. State of T.N.         In a similar vein the Privy Council in Barendra  Kumar Ghosh v. King Emperor [AIR 1925 PC 1 : 26 Cri.  LJ 431] stated the true purport of Section 34 as below:  (AIR p.6)         ’[T]he words of Section 34 are not to be  eviscerated by reading them in this exceedingly  limited sense. By Section 33 a criminal act in  Section 34 includes a series of acts and, further,  ’act’ includes omission to act, for example, an  omission to interfere in order to prevent a murder  being done before one’s very eyes. By Section 37,  when any offence is committed by means of  several acts whoever intentionally cooperates 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’."         The above discussion in fine thus culminates to the  effect that the requirement of statute is sharing the  common intention upon being present at the place of  occurrence. Mere distancing himself from the scene  cannot absolve the accused \026 though the same however  depends upon the fact situation of the matter under  consideration and no rule steadfast can be laid down  therefor."                  Applying the legal principles as noticed, we unhesitatingly are of the  opinion that common intention on the part of the appellant in committing the  crime with Pitram stands established.

       The investigation was not fool proof but then defective investigation  would not lead to total rejection of the prosecution case.

       In Visveswaran vs. State Rep. by S.D.M. [(2003) 6 SCC 73], this  Court held:

       "Before we notice the circumstances  proving the case against the appellant and  establishing his identity beyond reasonable doubt,  it has to be borne in mind that the approach  required to be adopted by courts in such cases has  to be different. The cases are required to be dealt  with utmost sensitivity, courts have to show  greater responsibility when trying an accused on  charge of rape. In such cases, the broader  probabilities are required to be examined and the  courts are not to get swayed by minor  contradictions or insignificant discrepancies which  are not of substantial character. The evidence is  required to be appreciated having regard to the  background of the entire case and not in isolation.

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The ground realities are to be kept in view. It is  also required to be kept in view that every  defective investigation need not necessarily result  in the acquittal. In defective investigation, the only  requirement is of extra caution by courts while  evaluating evidence. It would not be just to acquit  the accused solely as a result of defective  investigation. Any deficiency or irregularity in  investigation need not necessarily lead to rejection  of the case of prosecution when it is otherwise  proved."

       In State of M.P. vs. Mansingh  & Ors. [(2003) 10 SCC 414], this  Court held:

       "Even if it is accepted that there was  deficiencies in investigation as pointed out by the  High Court, that cannot be a ground to discard the  prosecution version which is authentic, credible  and cogent. Non-examination of Hira Lal is also  not a factor to cast doubt on the prosecution  version. He was not an eyewitness, and according  to the version of PW 8 he arrived after PW 8.  When PW 8 has been examined, the non- examination of Hira Lal is of no consequence."         For the reasons aforementioned, we are of the opinion that the learned  Trial Judge and the High Court have not committed any error in passing the  impugned judgment of conviction and sentence.  The appeal is dismissed  accordingly.