Full Judgment Text
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PETITIONER:
SHEORAM SINGH & ANR.
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT23/08/1972
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
SHELAT, J.M.
DUA, I.D.
CITATION:
1972 AIR 2555 1973 SCR (1) 939
1973 SCC (3) 110
ACT:
Indian Penal Code (45 of 1860),s. 34-Circumstances for
invocation of.
HEADNOTE:
Seven accused attacked one of the prosecution witnesses who
took-refuge inside a house. The deceased and the
prosec‘ution witness went to the roof of the house when one
of the accused, who was the father of the appellant, asked
the deceased to turn out the Prosecution witness as
otherwise it would be bad for him also. On his refusal to do
so,that accused shot at the deceased with a Run and the
deceased died. The appellant, thereafter, fired at the
proscution witness and caused. him an injury. AU the accused
were charged with offences under s.302, s.302 read with
s.149, s.307 read with s.149, s.307, s.148 and s.147, I.P.C.
The trial court acquitted them. On appeal the High Court
held that the death of the deceased took place as a result
of the firing by the father of the appellant and convicted
him under s.302, I.P.C. The appellant,who injured the
prosecution witness by firing a shot at him, was convicted
under s.307, I.P.C. The appellant was also convicted under
s.302 read with s. 149 in connection with the death of the
deceased and also under s.148 for the, offence of rioting
with a deadly weapon. As regards the other accused, the High
Court held that their common object was to kill the
Prosecution witness and not the deceased. ’Therefore, the
High Court convicted them of the offence under s.307 read
with s.149 I.P.C. and acquitted them of the offence under
s.302 read with s.149.
In appeal to this Court,
HELD : (1) The reasons for acquitting the other five accused
for-the offence under s.302 read with s.149, I.P.C. hold
equally good in relation to the appellant also, and hence
his conviction for that offence could not be sustained.
[943E-F]
(2) A common intention can develop during the course of an
occurrence but there has to be cogent material on the basis
of which the Court can arrive at such a finding and hold one
accused vicariously liable for the act of another accused by
invoking s.34, I.P.C. [944C-D]
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In the present case, there is nothing to show that there was
any exhortation or encouragement by the appellant to his
father to fire at the deceased, The words attributed to the
father indicate that he was not willing to spare the
deceased if the latter did not turn out the prosucution
witness from his house, but it could not be inferred from
that that the appellant shared the intention of his father
or that the shot was fired by the father at the deceased in
furtherance of their common intention. It does not follow
from the shot fired by the appellant at the prosecution
witness that the shot fired at the deceaed by his father was
o fired in furtherance of the intention of the appellant.
[943G-H; 944AC]
Hence the appellant could not be found guilty under s.302
read with s. 34 I.P.C., also. [944D]
JUDGMENT:
CRIMINAL APPFLLATE JURISDICTION : Criminal Appeal No. 215 of
1969.
Appeal by special leave from the judgment and order dated
April 15, 1969 of the Allahabad High Court (Lucknow Bench)
in’Cr. A. No. 957 of 1965.
J. P. Goyal and S. M. fain, for the appellants.
D. P. Uniyal, V. Mayakrishnan and O. P. Rana, for the
respondent.
The Judgment of the Court was delivered by
Khanna J Arjun Singh (47), his son SheoramSingh alias
Bhure Singh (27), Jagatpal Singh (29), GangaDeen (29),Ram
Nath (39), Sheo Prasad (30) and Jumman(30) were tried in
the court of Additionat Sessions JudgeUnnao for offences
under section 302, section 302 read with section 149,section
307, section 307 read with section 149, section 148 and
section 147 Indian Penal Code and were acquitted. On appeal
by the State of Uttar Pradesh, the Allahabad High Court
convicted Arjun Singh under section 302, section 307 read
with section 149, and section 148 Indian Penal Code, and
sentenced him to undergo imprisonment for life on the first
count, rigorous imprisonment for a period of five years on
the second count and rigorous imprisonment for a period’ of
two years on the third count. Sheoram Singh was convicted
under section 302 read with section 149, section 307 and
section 148 Indian Penal Code, and was sentenced to undergo
imprisonment for life on the first count, rigorous
imprisonment for a period of five years on the second count
and rigorous imprisonment for a period of two years on the
third count. The remaining accused were convicted under
section 307 read with section 149, and section 147 Indian-
Penal Code, and each of them was sentenced to undergo
rigorous imprisonment for a period of five years on the
first count and rigorous imprisonment for a period of one
year on the second count. The sentences in the case of each
of the accused were ordered to run concurrently. Arjun
Singh, Sheoram Singh and Jumman thereafter applied to this
Court under article 136 of the Constitution for special
leave to appeal against the judgment of the High Court.
This Court declined to grant leave to Arjun Singh and
dismissed the application in go far air it related to him.
Sheoram Singh and Jumman were granted leave "limited to the
section under which they can be convicited
including the applicability of section 34 and 149 Indian
PenalCode".The prosecution case. is that Arjun Singh,
Jumman, Ganga Deen and Shoo Prasad accused were inimical
towards Ram Dularey Singh as he was taking interest in a
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magisterial enquiry relating to the death in police custody
of one Jaineel who had been severely beaten by the aforesaid
accused in Sirosi
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before his arrest by the police. On November 4, 1964 at
about 4.30 p.m., it is stated, Ram Dularey Singh (PW 4) was
sitting in front of his house in village Chilaula,. Rampal
Singh (PWI-) and his cousin Chandrapal Singh were sitting,
in the courtyard in front of their house beneath a tree.
The houses of Rampal Singh and Ram Dularey Singh are close
to each other. The seven accused. then came there. Out of
them, Arjun Singh and Sheoram Singh were with Runs, while
the remaining accused carried lathis. Arjun Singh then
shouted to his companions to kill Ram Dularey Singh. Ram
Dularey Singh raised alarm and rushed towards the house of
Rampal Singh and closed the door from inside, Rampal Singh
and Chandrapal Singh tried to pacify the accused and asked
them not to quarrel on that day as it was a day of Paraiva
which follows Deepawali. The accused then stood at a short
distance from the house of Ram Dularey Singh. Har Narain
Singh deceased, who was brother of ChaNdrapal Singh, was
inside the house at that time. Hai Narain Singh along with
Ram Dularey Singh then went to the eastern roof of the
house. Har Narain Singh too asked the accused to abstain
from abusing Ram Dularey Singh, Arjun Singh then asked Har
Narain Singh to turn out Ram Dularey Singh from his house.
When Har Narain Singh declined, Arjun Singh shouted that it
would be bad for him also. On the instigation of the other
accused, Arjun Singh then fired his gun at Har Narain Singh.
Sheoram Singh immediately thereafter fired at Ram Dularey
Singh. Both Har Narain Singh and Ram Dularey Singh fell
down on the roof on receipt of gun shot injuries. The
accused then ran away. The occurrence, it is stated, was
witnessed by Rampal Singh (PW 1) Raghunandan Pandey (PW 2),
Gajodhar Singh (PW 6) and Suraj Bali (PW 8). Rampal Singh
after getting the door of his house opened went to the roof.
Har Narain Singh was found to be lying dead there, while Ram
Dularey Singh was groaning with pain. Rampal Singh then
went to police station Kotwali at a distance of six miles
from the place of occurrence and lodged report at 8-40 p.m.
Sub Inspector Sri Ram Ban Chauhan then came to the place of
occurrence and took over the investigation of the case.The
Sub Inspector prepared the inquest report relating to the
dead body of Har Narain Singh and took into possession
various articles. Ram Dularey Singh was got examined from
Dr. S. N. Tandon at 12-15 a.m. on November 5, 1964. He was
found to have gun shot wounds on the front of the chest,
abdomen. right elbow, right forearm and the right palm.
Post mortem examination on the dead body of Har Narain Singh
was performed by Dr. B. N. De at 3.30 p.m. on November 5,
1964. Gun shot wounds were found in the chest cavity, left
shoulder, lower left arm and right arm on the body of Har
Narain Singh. A number
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of ribs were found to have been fractured under the gun shot
wounds in the chest cavity. Death of Har Narain Singh, in
the ,opinion of the doctor, was due to shock haemorrhage.
At the trial the accused denied the prosecution allegation.
The plea of Arjun Singh and Sheorain Singh was that on
November 4, 1964 Ariun Singh went at 2.00 or 2.45 P.M. to
railway station Nagarwara to see off his son Sheoram Singh
accused, who had to go to Ferozepur on duty. Sheoram Singh
is employed in the army. Sheoram Singh’s train left the
railway station at 4.10 p.m. and Arjun Singji returned to
his house at about sunset. According further to Arjun
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Singh, he was asked by the police to come to the police
station along with us guns and cartridges. He was
thereafter put under arrest. The plea ,of the remaining
accused was denial simpliciter.
The Additional Sessions Judge acquitted the accused because
be was of the view that the evidence adduced by the
prosecution was of a partisan character. It was also held
that the investigation of the case was tainted. On appeal
the High Court considered the evidence of Rampal Singh (PW
1), Ram Dularey Singh (PW 4) and Gajodhar Singh (PW 6) to be
free from blemish. The ocular evidence adduced by the
prosecution was ,accepted. The High Court, however, found
the evidence regarding the exhortation by the other accused
to Arjun Singh to kill Har Narain Singh and Ram Dularey
Singh to be not very convincing It was held by the High
Court that the death of Hat Narain Singh took place as a
result of firing by Arjun Singh. Arjun Singh was convicted
under section 302 Indian Penal Code. He was also found to be
guilty of the offences under section 307 read with section
149 and section 148 Indian Penal Code. Sheo-ram Singh, who
was alleged to have injured Ram Dularey Singh PW by firing a
shot at him, was convicted on that account under section 307
Indian Penal Code. Sheoram Singh was further convicted under
section 302 read with section 149 Indian Penal We in
connection with the death of Har Narain Singh and also under
section 148 Indian Penal Code for the offence rioting with
deadly weapon. Regarding the other accused, the High Court
was of the view that they were guilty under section 147
Indian- penal Code for the offence of rioting while being
members of an unlawful assembly. Their common object, in the
opinion of the High Court, was to kill Ram Dularey Singh. As
such. they were also found to be guilty of the offence under
section 307 read with section 149 Indian Penal Code. It was
not the object of the unlawful assembly, in the opinion of
the High Court, to cause the death of Har Narain Singh. The
case under section 302 read with section 149 Indian Penal
Code against these accused was held to have not been
proved.
943
Mr. Goyal on behalf of the appellants has not challenged
before us the conviction of Jumman appellant for the
offences under section 307 read with section 149 and
section 147 Indian Penal Code. Learned counsel has further
not challenged the conviction of Sheoram Singh appellant for
offences under sections 307 and 148 Indian Penal Code. The
only contention which has been advanced by Mr. Goyal before
us is that the conviction of Sheoram Singh appellant for the
offence under section 302 road with section 149 Indian Penal
Code is not well founded. There is, in our opinion,
considerable force in this contention. It would appear from
the resume of facts given above that the common object of
the unlawful assembly, of which Sheoram Singh and other
accused were members, was to cause the death of Ram Dularey
Singh., None of them had any enmity with Har Narain Singh or
any motive to kill him. Har Narain Singh, no doubt was
killed as a result of the shot fired by Arjun Singh, but
there is nothing on the record to show that Arjun Singh
fired the shot at Har Narain Singh in prosecution of the
common object of the unlawful assembly. The High Court has
acquitted the accused, other than Arjun Singh and Sheoram
Singh, for the offence under section 302 read with section
149 Indian Penal
Code oN the ground that the murder of Har Narain Singh was
not the initial object of the unlawful assembly and the
firing at him was the result of developments which could not
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have been anticipated. If the other five accused were
acquitted and not found guilty of the offence under section
302 read with section 149 Indian Penal Code in connection
with the death of Har Narain Singh, it is not clear as to
how the conviction of Sheorain Singh for the said offence
could be sustained. The reasons which led to the acquittal
of the other five accused for the offence under section 302
read with section 149 Indian Penal Code held equally good
for the acquittal for that offence of Sheoram Singh.
Mr. Uniyal on behalf of the State has argued that even if
the conviction of Sheoram Singh for the offence under
section 302 read with section ’149 Indian Penal Code cannot
be sustained,he is guilty of the offence under section 302
read with section 34 Indian Penal Code because the
circumstances of the case show that Arjun Singh fired the
shot at Har Narain Singh in furtherance of the common
intention of Arjun Singh and Sheoramn Singh. This
submission, in our opinion, is not well founded.There is
nothing to show that there was any exhortation by Sheoram
Singh to Ariun Singh to fire at Har Narain Singh.Indeed, the
High Court has not accepted the evidence of exhortation to
Arjun Singh by any of the other accused before Arjun Singh
fired at Har Narain Singh. The prosecution has,no doubt, led
evidence to show that Arjun Singh before firing the shot at
Har Narain Singh told him that if he did not turn
944
out Ram Dularey Singh from his house, it would be bad for
him (Har Narain Singh) also. These words, undoubtedly,
indicate the attitude of Arjun Singh and show that he was
not willing to spare Har Narain Singh if the latter was not
prepared to turn out from his house Ram Dularey Singh. It
is, however, difficult to infer from that exclamation of
Arjun Singh that Sheoram shared the intention of Arjun Singh
and that the shot was fired by Arjun Singh at Har Narain
Singh in furtherance of the common intention of Arjun Singh
and Sheoram Singh. There is, indeed, nothing on tile record
to indicate that Sheoram Singh in any way encouraged his
father Arjun Singh to kill Har Narain Singh. Sheorain
Singh, no doubt, fired a shot at Ram Dularey Singh and for
that he has been convicted under section, 307 Indian Penal
Code. but it does not follow from that the shot at Har
Narain Singh by Arjun Singh was also fired in furtherance of
the intention of Sheoram Singh. It is undeniable-that
common intention can develop during the course of an
occurrence, but there has to be cogent material on the basis
of which the court can arrive at that finding and hold an
accused vicariously liable for the act of the other accused
by involving section 34 of the Indian Penal Code.
As a result of the above, we accept the appeal of Sheoraim
Singh to the extent of setting aside his conviction and
sentence for the offence under section 302 read with section
149 Indian Penal Code. In other respects the appeal of
Sheoram Singh is dismissed. The appeal regarding Jurnman
has not been pressed and is dismissed.
V.P.S.
Appeal dismissed
945