STATE OF PUNJAB v.

BAKHSHISH SINGH & ORS. (Criminal Appeal No. 1153 of 2002)

OCTOBER 17, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.  1. Challenge in this appeal is to the

judgment of a Division Bench of the Punjab and Haryana High Court directing acquittal of respondents Bakhshish Singh, Balraj Singh and Gurmeet  Kaur  while  altering  the  conviction  of  respondent  Balbir Singh from one under Section 302 of the Indian Penal Code, 1860 (in short  the  ‘IPC’)  to  one  under  Section  304  Part  I  IPC.  Learned Additional  Sessions  Judge  Gurdaspur,  had  convicted  each  of  the respondents  for  offence  punishable  under  Section  302  read  with Section 34 IPC.

2. Prosecution version as unfolded during trial is as follows: Agricultural  lands  of  Kabul  Singh  (PW4)  and  that  of  Mangal

Singh (hereinafter  referred to as the ‘deceased’),  his nephew, and that  of  respondent-Bakhshish  Singh and  others  adjoin  each  other and are located in the same vicinity in village Bhoa and fall within the jurisdiction  of  Police  Station  Sadar,  Pathankot,  District  Gurdaspur. The land of Darshan Singh is also located nearby. About one week before  the  occurrence  Darshan  Singh  was  irrigating  his  land  with canal water. The canal water over-flowed through the Khal including the fields of Kabul Singh PW4 and entered into the fields of accused Bakhshish Singh wherein wheat crops were sown. Though this canal water had come,  perhaps,  from the field  of  Darshan Singh to  the fields of the appellants but the accused were feeling that the canal water had come through the fields of deceased Mangal Singh. So, it was in  this  wake that  on 1.5.1994,  around 9.00 A.M.  while  Kabul Singh PW4 and his nephew deceased Mangal Singh were returning from the fields along with Swinder Kaur  (PW5),  mother of  Mangal Singh,  the accused  persons,  namely,  Bakhshish  Singh and Balbir Singh armed with a dang each, Balraj Singh armed with Chhavi were found standing on the pucca culvert on the metalled road near the

house of accused Bakhshish Singh. Gurmeet Kaur raised a lalkara saying that Kabul Singh and Mangal Singh should not be allowed to escape  as  they  had  damaged  their  crops.  Bakhshish  Singh  and Balbir  Singh took Mangal Singh in their grip and threw him on the ground while accused Balraj Singh at the instigation of his mother Gurmeet kaur inflicted a Chhavi blow on the head of Mangal Singh and it  is only when the close relations of the deceased prayed for sparing the life of Mangal Singh, the accused persons ran away from the  scene  of  occurrence.  Mangal  Singh  was  removed  to  Civil Hospital, Pathankot from where he was referred to C.M.C. Ludhiana.

The aforesaid Mangal Singh breathed his last due to injuries on the way of Ludhiana. The dead body was brought to Civil Hospital, Pathankot. The statement Ex. PJ of Kabul Singh was recorded by SI Jarnail Singh PW8 at 7.30 P.M. on 1.5.1994 and on its basis formal F.I.R.  Ex.  PJ/2  was recorded  at  7.55/8.55  P.M.  on 1.5.1994.  The special report reached the learned Ilaga Magistrate at 5.05 A.M. on 2.5.1994. Thereafter SI Jarnail Singh (PW8) went to Civil  Hospital, Pathankot  and  prepared  inquest  report  Ex.PL  and  sent  the  dead body for postmortem. On 2.5.1994, the Investigating Officer went to the scene of occurrence and prepared rough site plan Ex.PO with marginal notes.  He took into possession five copies of sale deeds produced by Kabul Singh vide memo Ex.PK. Accused Balbir Singh, Bakhshish  Singh  and  Balraj  Singh  were  arrested  on  5.5.1994.  In pursuance  of  his  disclosure  statement  on  Ex.PP,  accused  Balraj Singh  got  recovered  Gandasi  Ex.  P1  which  was  taken  into possession  vide  memo  Ex.PR.  Accused  Gurmeet  Kaur  was  also arrested.

Dr. Sunil Ghai (PW2) conducted autopsy on the dead body of deceased Mangal Singh on 2.5.1994 and found the following injury:-

Lacerated wound 2 cm x 0.5. cm stitched present on the middle of the head approximately 2 cm. Left to the mid line. On dissection, underlying parietal bone was fractured. S/C tissue was lacerated and there was extradural and sub dural haematoma present. Brain tissue underlying was lacerated.

In the opinion of the doctor, the cause of death was due to the injuries to the vital organ brain caused by injury No.1. The injuries were  ante  mortem in  nature  and  sufficient  to  cause  death  in  the ordinary course of nature. Ex. P.C. is the copy of the post mortem report.

After  completion  of  investigation,  charge  sheet  was  filed  and since the accused persons pleaded innocence, trial was held. The trial court placed reliance on the evidence of PW 4, the complainant, PW 5 who claimed to be an eye witness to hold the accused persons guilty.

In appeal the basic stand of the accused persons was that there was absolutely no evidence so far as accused Bakhshish, Balbir and Gurmeet are concerned. So far as Gurmeet is concerned it is stated that  she is stated to have only raised a lalkara and that so far as accused Bakhshish and Balbir are concerned they are supposed to have held the accused in their grip while accused Balraj inflicted a single blow. The stand of the prosecution was that by application of Section 34 IPC each one of them had been rightly found guilty. The High  Court  found  that  the  evidence  did  not  establish  the  roles purportedly played by Gurmeet, Balbir and Bakhshish. It also noted that only a single blow was given by Balraj and that too in course of a sudden  quarrel.  Accordingly  as  noted  above  Gurmeet,  Balbir  and Bakhshish  were  acquitted  while  the  conviction  of  Balraj  was confirmed.

3.  In  support  of  the  appeal  learned  counsel  for  the  appellant submitted that the High Court ought to have held that Section 34 has full  application to the facts  of the case.  It  should not  have altered conviction so far as accused Balbir is concerned.

4.  Learned  counsel  for  the  respondents  on  the  other  hand supported the judgment of the High Court.

5. 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 contents of the Section are 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 (AIR 1977 SC 109), 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.

6. As it originally stood, Section 34 was in the following terms: “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.” 7.  In  1870,  it  was amended by the  insertion  of  the  words “in

furtherance of the common intention of all” after the word “persons” and before the word “each”, so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).  

8. 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 (AIR 1993 SC 1899), 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.

9. The above position was highlighted recently in  Anil  Sharma and Others v. State of Jharkhand [2004 (5) SCC 679], in  Harbans Kaur  v.  State  of  Haryana  [2005(9)  SCC  195]  and  Amit  Singh Bhikamsingh Thakur v. State of Maharashtra [2007(2) SCC 310].

10. The High Court analysed the evidence of PWs 4 & 5 to come to the conclusion that the role of the acquitted accused persons do not really attract Section 34 IPC. So far as alteration of conviction is concerned  though in all  cases it  cannot  be said that  when only a single blow is given Section 302 IPC is made out yet it would depend upon the factual scenario of each case; more particularly the nature of the offence, the background facts, the part of the body where the injury is inflicted and the circumstances in which the assault is made.

11. In the instant case prosecution version itself shows that there were  altercations.  In  that  view of  the  matter  the  High  Court  was justified in altering the conviction from Section 302 to Section 304-I IPC.

12. We find no merit in this appeal, which is accordingly dismissed.