PUNJAB & HARYANA AT CHANDIGARH Raj Kumar State of Haryana Virender State & Ors. v. CRA-S-2473-SB-2004
Case at a glance
Outcome
Disposed of
Appeals stand disposed of accordingly
Provisions considered
- Indian Penal Code, 1860 ss. 34, 307, 326, 452
- Code of Criminal Procedure, 1973 ss. 173, 313, 319
- Indian Evidence Act, 1872 s. 11
Key paragraphs
- Para 1616. The two essentials for attracting Section 34 IPC are, (a) the criminal act consisting of a series of act should have been done by more than one person (b) doing of every such individual act cumulatively resulting in the commission of criminal offence should…
Judgment
Challenge in the present appeals is to the judgment/order dated 01/02.12.2004, passed by the learned Additional Sessions Judge (Fast Track Court), Bhiwani, whereby appellants were convicted and sentenced as under: Offence u/s 307/34 IPC Imprisonment RI for ten years Fine Rs.8000/- each Default sentence SI for one year 326/34 IPC RI for six years Rs.2000/- each SI for four months 452/34 IPC RI for three years Rs.1000/- each SI for two months All the sentences shall run concurrently.
Succinctly the facts are that, Manoj Kumar-complainant made a HAMANT 2024.03.05 11:44 I attest to the accuracy and integrity of this order/judgment CRA-S-2473-SB-2004 CRA-S-2520-SB-2004 -2- statement to the police that on 23/24.07.2002, he along with his brother-Baljeet and uncle Dharambir were sleeping on the roof of his house, whereas the other family members were in the courtyard. During the night, hearing the cries, he woke up and saw his uncle sustained injuries and two persons ran away from there. His uncle was rushed to General Hospital, Charkhi Dadri, from where due to serious condition, he was referred to PGIMS, Rohtak. Ruqa was sent to the
police station. On basis of the said statement, an FIR came to be registered.
After completion of investigation, final report under Section 173 Cr.P.C. was presented in the Court against the accused-appellants. On finding a prima facie case, charges under Sections 307/326/452/34 IPC were framed against them, to which they pleaded not guilty and claimed trial.
The prosecution in order to bring home the guilt of the accused examined as many as 14 PWs. On closure of their evidence, statements of the accused were recorded under Section 313 of Cr.P.C. They denied all incriminating circumstances that appeared against them in the prosecution case while pleading false implication. In defence, they examined six witnesses.
The trial Court on analysing the oral as well as documentary evidence led by the parties, convicted and sentenced the appellants as noticed above.
Aggrieved appellants are before this Court. Learned counsel for the appellants, contends that the trial Court has committed a grave error while holding the appellant guilty, despite the fact that accused Attar Singh, Raj Kumar @ Billu and Harpal were not named in the FIR and they were also found innocent by the police during investigation. It is on the HAMANT 2024.03.05 11:44 I attest to the accuracy and integrity of this order/judgment CRA-S-2473-SB-2004 CRA-S-2520-SB-2004 -3- application filed under Section 319 CrPC that the trial Court summoned them. The statement of injured-Dharambir was recorded after 28 days by the police. No injury caused by the appellants was declared dangerous to life. The recovery of weapons allegedly used in the crime could also not be connected to the crime of the accused-appellant. The required weight age was not given to the six defence witnesses, as per their statements, accused Attar Singh, Raj Kumar and Harpal were not present at the spot. Lastly and in the alternative, learned counsel prays for taking a lenient view regarding the sentence for it to be reduced to the period already undergone by the appellants, as they are sole breadwinners of their family; poor strata of the society; have the children of marriageable age; not involved in any other case; never misused the concession of bail and have been facing the agony of protracted trial for the last 22 years.
Learned counsel for the State on the other hand submitted that the trial Court has analysed the factual position in detail, and the accused have been rightly convicted for offence punishable under Section 307 read with Section 34 of Indian Penal Code. Keeping in view the nature of the injuries sustained, it cannot be said that the sentence is excessive. Thus, he prays for the dismissal of the present appeals. He, however, affirms the non-involvement of the appellants in any other criminal case.
Heard the learned counsel on either side and perused the record. It is evident from the record that on basis of the medical ruqa as regards injured Dharambir received, PW-12, ASI Hari Singh went to PGIMS Rohtak on 24.07.2002 and moved an application seeking opinion of the doctor HAMANT 2024.03.05 11:44 I attest to the accuracy and integrity of this order/judgment CRA-S-2473-SB-2004 CRA-S-2520-SB-2004 -4- about fitness of the said injured for making statement but he was not fit for statement. However, complainant Manoj, nephew of the injured, was in the hospital, who got recorded his statement, on basis of which, the FIR in question was registered. Thereafter, on various dates, police made requests and finally his statement was recorded on 20.08.2002.
In his statement Dharambir s/o Bhawana Ram while appearing as PW1 had specially deposed that on the intervening night of 23/24.7.2002, four persons namely Attar s/o Mardu Ram, Buli alias Raj Kumar s/o of Arjun, Binder came to the spot, whereas Harpal s/o Laxman was standing near the tractor trolley, parked in front of his house. Binder gave one axe blow on his neck and another on left hand, which cut his two fingers. Attar caused a knife blow on the right shoulder, due to which his bone was cut, whereas Buli @ Raj Kumar gagged his mouth.
PW-2 Dr.Sanjay Fotedar, Senior Resident, Department of Chest and TB, PGIMS, Rohtak, who examined injured Dharambir, found the following injuries on his person: Incised wound of size 5x3 c.m. present on anterior aspect Incised wound of size 8x5 c.m. present on the anterior
1. aspect of neck extending from 2 c.m. right of mid line up to the anterior border of left sternocleidomastoid muscle, larynx cut at the level of vocal cords, fresh bleeding present. 2. of right shoulder, fresh bleeding was present. Stab injury of size 3x1 c.m. present below the medial 1/3 3. of right clavicle, fresh bleeding was present with incised wound of size 6 x 3 c.m. extending from later margin of injury No.3. 4. under lying bone exposed, fresh bleeding was present.
Index and middle fingers of left hand amputated with After preparing the MLR patient was referred to ENT Specialist for the management of injury No.1, Surgeon Specialist for injuries No.2 and 3 and Ortho Specialist for injury No.4. Kind of weapon used was sharp…” HAMANT 2024.03.05 11:44 I attest to the accuracy and integrity of this order/judgment CRA-S-2473-SB-2004 CRA-S-2520-SB-2004 -5-
PW-13, Dr.Avinash Kumar, Senior Resident, ENT, PGIMS, Rohtak deposed that,
On that day patient Dharambir son of Bhagana was admitted in PGIMS Rohtak vide CR No.273649. The patient was referred from Bhiwani hospital. I have treated the patient as ENT Specialist. The patient was admitted with alleged history of assault. Patient had a cut throat wound of the size of 8x5 cm in the anterior part of neck. It was deep wound up to the posterior pharyngeal wall. Thyrohyoid membrane was torn and thyroid was found exposed. Vocal cords were visible. Immediate tracheostomy was done and wound was repaired under general anesthesia. Ryle’s tube was put in. Patient was given one unit of blood transfusion along with one unit of haemixal. …. On 25.7.2002 on the police request Ex.PQ I opined the injuries of the person of Dharambir is dangerous to life…. Since patient had other injuries also so orthopedics opinion and general surgeon’s opinion were also sought for. Patient remain admitted for about three months…. Oesophagoscopy was done on 5.10.2002.
PW14 Dr.Kanupriya, Radiologist, PGIMS, Rohtak, who radiologically examined injured Dharambir Siongh, found the following injuries on his body: X-ray right shoulder-fracture right clavicle seen. X-ray left hand-amputation of 2nd and 3rd fingers at
1. 2. proximal phalanges. X-ray chest-Trachea shifted to right. Heart size normal. 3. Non homogenous opacity right upper and mix zones. Homogenous opacity right base obscuring right C.P.Agle- right pleural effusion. 4. STN (AP and lateral) -air seen in the soft tissues of neck.
Section 307 Indian Penal Code reads : "Attempt to murder - Whoever does any act with such intention HAMANT 2024.03.05 11:44 I attest to the accuracy and integrity of this order/judgment CRA-S-2473-SB-2004 CRA-S-2520-SB-2004 -6- or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. "
The two essentials for attracting Section 34 IPC are, (a) the criminal act consisting of a series of act should have been done by more than one person (b) doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of common intention of all such person. Hon’ble the Supreme Court in Suresh and another vs. State of U.P., reported in (2001) 3 SCC 673 had widened the scope of Section 34 and held thus: "37. However, in view of the importance of the matter, in so far as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our view in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section.
It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention. 38. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in 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, the same as if each of them had done it individually. There is no gainsaying that a common intention is just HAMANT 2024.03.05 11:44 I attest to the accuracy and integrity of this order/judgment CRA-S-2473-SB-2004 CRA-S-2520-SB-2004 -7- presupposes prior concert, which requires a prearranged plan of the accused participating in an offence.
Such 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 the spur of moment. The existence 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. 39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act". The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all.
The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence.
The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted HAMANT 2024.03.05 11:44 I attest to the accuracy and integrity of this order/judgment CRA-S-2473-SB-2004 CRA-S-2520-SB-2004 -8- in concert with others in order to bring about that result, that Section 34 may be applied. "
In the facts of the present case, PW-2, Dr.Sanjay Fotedar has categorically opined that the injuries were caused with sharp edged weapon, which stands corroborated as per the opinion Ex. PQ, given by Dr. Avinash Kumar, and the injuries sustained by the injured Dharambir were declared to be dangerous to life, he was having a cut throat deep wound in the anterior part of the neck.
Further, ASI Hari Singh PW-12 stated that he interrogated accused Virender alias Binder vide memo Ex.PS and recovered axe (Kulhari) vide memo Ex.PD, attested by witnesses.
A conviction under Section 307 may be justified if it can be adequately demonstrated that intent coupled with an overt act was executed. Infliction of bodily injury capable of causing death is not necessary. While the intention of the accused may be inferred from the nature of the injury inflicted, it may also be deduced from other circumstances, sometimes without any consideration to the actual wounds. A distinction has been made under the section, between the act of the accused and the consequences. The Court must assess whether the act was carried out with intention or knowledge as per the circumstances outlined in the section, irrespective of the outcome. For an attempt to be considered criminal, it is not obligatory for it to be penultimate. Execution of an act along with the presence of intent, is sufficient.
The section certainly makes a distinction between the act of the accused and its result. The court is required to see whether the act, irrespective of its result, was done with the intention or knowledge and in the circumstances HAMANT 2024.03.05 11:44 I attest to the accuracy and integrity of this order/judgment CRA-S-2473-SB-2004 CRA-S-2520-SB-2004 -9- mentioned in the section. It is not even important that the criminal act in order to be an attempt should be a penultimate act. It is sufficient in law if there is present an intent coupled with some over-tact act in execution thereof. [See: Sarju Prasad vs. State of Bihar (AIR 1965 Supreme Court 843), State of Maharashtra vs. Viram
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Appeals stand disposed of accordingly
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — ss. 34, 307, 326, 452; Code of Criminal Procedure, 1973 — ss. 173, 313, 319; Indian Evidence Act, 1872 — s. 11.
Which court decided this case, and when?
Punjab & Haryana High Court, on 28 Feb 2024. The bench was AMAN CHAUDHARY.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.