The Allahabad High Court has reduced the sentence of two murder case accused since common intention was not proved.
The Division Bench of Justice Suneet Kumar and Brij Raj Singh passed this order while hearing two Connected Criminal Appeals by Tefa Ram And Anr.
The Appeal has been filed by accused appellants Tefa Ram and Basant Ram against the order dated February 16, 2018 passed by the Additional District and Sessions Judge, Ballia, whereby, the Trial Court has convicted and sentenced them to 10 years rigorous imprisonment and a fine of Rs 30,000 each under Sections 304/34 IPC and in default of payment of fine, the appellants were further directed to undergo one year imprisonment; six months’ RI under Section 323/34 IPC; one year RI under Section 504 IPC and three years RI and a fine of Rs 5000 under Section 506 IPC and in case of default in payment of fine, the appellants were further directed to undergo two months’ imprisonment.
The complainant, Pavnesh Yadav, has filed the appeal against the same order dated February 16, 2018, in Sessions Trial, under Sections 147, 114, 323/34, 304/34, 504, 506 IPC, whereby, accused respondents, therein, Hira Lal, Chottey Lal and Sunil Kumar have been acquitted.
Since, both the afore-captioned criminal appeals have been filed against the common judgement and order dated February 16, 2018.
The facts giving rise to the appeals is that Pavnesh Yadav complained that on February 26, 2012, at about 14:30 hours, while he was levelling the naad charan with soil, accused Shintu, Rajesh Kumar, Tefa, Basant came on the spot and assaulted with lathi, danda, kicks and fists. On hearing hue and cry, Tulsi (deceased), the grandfather of the informant, rushed to the spot to save him. The deceased was beaten with lathi, danda, kicks & fists. The deceased succumbed to the injuries during treatment. A non-cognizable report (NCR) came to be lodged at 15:45 hours. The informant and the deceased were medically examined at 17:00 hours and 18:08 hours respectively.
The Court noted, “It appears that apart from the nominated accused, after almost a year, on an application under Section 173(8) Code of Criminal Procedure, 19731 accused Heera Lal, Chhotey Lal and Sunil Kumar were alleged to have been present on the spot and they exhorted the nominated accused to commit the offence, accordingly, a separate charge sheet came to be filed against them on May 20, 2013.
The charge sheet against the nominated accused was filed on May 4, 2012. Accused Shintu and Rajesh Kumar being juvenile, their case was referred to the Juvenile Justice Board.
As per prosecution case, the nominated assailants reprimanded and prevented the informant from levelling the naad charan with soil, on resistance, they assaulted Pavnesh Yadav with lathi, danda, kicks and fists. The informant incurred two simple injuries. During the assault, grandfather (deceased) came rushing to intervene and prevent the assailants from causing injury to his grandson. Consequently, he incurred injury on left side and one injury on the head above left eyebrow. The head injury proved fatal. The other injuries are simple in nature.
In the opinion of the medical expert, injuries could have been caused by sudden fall on a hard object. The trial court convicted the accused-appellants and sentenced them to maximum punishment of 10 years under Section 304 Part-II, IPC, though, the impugned judgment does not record the conviction and sentence in Part-II in that many words.
But on a careful reading of the judgment and conclusion, the trial court was of the opinion that having regard to the ‘knowledge and circumstances’, conviction and sentence has been imposed upon the accused appellants under Section 304 IPC. The State counsel submits that the conviction would fall under Section 304 Part-II IPC.
It is submitted by Counsel for the appellants that taking the prosecution case on face value, the conviction and sentence of the accused would not travel beyond Part-II of Section 304 IPC. There was no intention to cause any injury or assault the deceased. The deceased intervened during an assault on his grandson over a parcel of land on which naad charan is situated. Injuries caused to the deceased were sudden and accidental.
It is, further, submitted that the accused had a right of private defence of the property which is subject matter of suit pertaining to the same property, including, naad charan, pending, inter se, parties i.e father of the accused-appellants and the deceased (Tulsi). An injunction order of the civil court is operative against the deceased.
It is further submitted that the incident took place in front of appellants’ house; Civil Judge granted status quo order in favour of appellants father on July 10, 2003. The parties were injuncted from changing the nature of land; prosecution case itself is to the effect that the informant was filling the manger (naad-charan) with soil. The action of the complainant probably provoked the assailants as he was changing the nature of disputed land; there is no evidence to suggest that the act was done in furtherance of a common intention. The three co-accused persons who were assigned the role of exhortation have been acquitted by the trial court; prosecution case intends to allege that the dispute arose when the appellants objected to informant’s action of filling up the manger (naad charan).
Thus, the prosecution case does not suggest that there was any premeditated common intention between the parties; there is no specific allegation against any accused as to who was assaulting with lathi-danda and who was assaulting with kicks & fists. Thus, even if the entire probable case is taken as gospel truth, it cannot be ascertained who was assaulting with lathi-danda and who was assaulting with kicks & fists. A person who is assaulting with fists cannot be said to have intended to cause death. Therefore, no common intention can be attracted to the facts of the case. Further, while acting in exercise of right to private defence, the appellants cannot be said to be motivated by a common intention to commit a criminal act. Common intention has relevance only to the offence and not to the right of private defence.
The Court held that,
The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.
Section 34 does not create a substantive offence. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled, i.e, the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. It is imperative that before a man can be held liable for acts done by another, under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.
The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention.
There is a civil dispute pending between the parties. The injunction order was operating in favour of the appellants. As per prosecution case, Pavnesh Yadav provoked the appellants as he attempted to change the nature of the property; during assault, Pavnesh Yadav incurred simple injuries. The deceased intervened and he succumbed to the single fatal blow of the lathi, other injuries are simple in nature. In the circumstances, the maximum sentence awarded for an offence under Section 304 Part-II, in our opinion, is excessive.
“Having due regard to the prosecution evidence and circumstances, we do not find any illegality, infirmity or perversity in the finding returned by the trial court in the impugned judgment and order. Accordingly, the conviction of the appellants is affirmed.
However, as far as sentence of the appellants under Section 304/34 IPC is concerned, considering the facts and circumstances of the case, we are of the opinion that the quantum of sentence awarded to the appellants is excessive. Accordingly, interest of justice would require that sentences of ten years rigorous imprisonment each under Sections 304/34 IPC awarded be reduced to five years “, the Court observed.
Accordingly, The Court ordered that, sentence of the appellants under Sections 323/34, 504 and 506 is maintained.
“However, the amount of fine of Rs 35,000 each awarded by the Trial Court on different counts is enhanced to Rs 50,000 each and out of the fine so realized, half of the same shall be given to the legal heirs/representatives of the deceased as compensation.
In view of what has been indicated herein above, Criminal Appeal No 1339 of 2018 preferred by the accused-appellants against their conviction and sentence is partly allowed, whereas, Criminal Appeal No 40 of 2020, preferred by the complainant against the acquittal of accused-respondents is dismissed,” the order reads.