Raj Beer Singh, J.
1. This appeal has been preferred against the judgment and order dated 13.08.1990 passed by XIth Additional Sessions Judge, Agra in Session Trial No. 623 of 1987 (State Vs. Hori Lal and others), under Section 302 I.P.C., P.S. Tundla, District Agra, whereby accused/appellants Mahesh, Hori Lal and Kamal Singh were convicted under Section 302/34 I.P.C. and sentenced to imprisonment for life.
2. Appellants Mahesh and Kamal Singh have expired during pendency of appeal and thus the appeal qua Mahesh and Kamal Singh stands abated.
3. As per prosecution version, there was enmity between complainant Badan Singh and accused-appellant Hori Lal on account of land as the complainant had purchased the land of brother of accused Hori Lal, which was not liked by the accused persons. Before 8-10 days of the incident, Hori Lal had ploughed the land of complainant's share. On 08.08.1987, the complainant's brother, namely Anek Singh had gone to the house of Hori Lal to make a complaint in that connection, but it ensued into an altercation between them. Accused-appellant Hori Lal exhorted his son Kamal Singh and one Mahesh to kill Anek Singh. Thereafter, accused-appellant Hori Lal and his son Kamal Singh started assaulting Anek Singh by Lathi and Mahesh gave axe blows at Anek Singh. One Ladi Ram, (PW-I) Surat Ram and (PW-2) Jhingaram, who were present there, tried to apprehend the accused persons, but all the accused persons fled away towards jungle. The complainant and his brother also reached there and saw that Anek Singh was lying in pool of blood and while they were bringing Anek Singh to their village Pipiriyan, he succumbed to his injuries during way. Complainant Badan Singh reported the matter to police station by filing written report Ex. Ka-1 and on that basis, this case was registered on 08.08.1987 at 9.10 P.M.
4. The inquest proceedings were conducted by S.I. A.P. Singh and inquest report Ex.Ka-3 was prepared. The dead body of deceased Anek Singh was sealed and was sent for postmortem.
5. Postmortem on dead body of deceased was conducted on 18.01.1990 by (PW-3) Dr R.C. Chaudhari vide Ex.Ka-4. Following injuries were found on the person of the deceased:
(i) Incised wound 9 cm X 3 cm. Cavity deep on Left side forehead, Bone has been cut. Brain matter visible and came out placed.
(ii) Incised Horizontal wound 7 cm X 2 Cm. Cavity deep on left side scalp, Bone cut, Brain matter came out.
(iii) Incised wound placed 7 cm X 2 cm. scalp cavity deep on left side occipital region, Bone cut, Brain matter came out, placed obliquely.
Cause of death of deceased was unconsciousness due to injuries.
6. (PW-5) S.I. S.A. Siddiqui took up the investigation. One blood stained axe, lying on the spot, was seized vide Ex. Ka-1 and during course of investigation, statements of witnesses were recorded.
7. After completion of the investigation, all the three accused persons, namely Hori Lal, Kamal Singh and Mahesh were charge-sheeted under Section 302 I.P.C.
8. Learned trial court framed charge under section 302/34 I.P.C. against all the three accused persons.
9. To substantiate the charge, prosecution has examined six witnesses. The accused persons were examined under Section 313 of Cr.P.C., wherein they have denied the prosecution evidence and claimed false implication.
10. After hearing and analyzing the evidence on record, all the three accused persons were convicted under Section 302/34 of IPC and sentenced to imprisonment for life, vide impugned judgment and order dated 13.08.1990.
11. Being aggrieved by the impugned judgment and order of the trial court, the appellants have preferred the present appeal.
12. Heard Sri Sashi Bhushan Kunwar, learned Amicus Curiae for the appellants and Sri H.M.B. Sinha, learned A.G.A. for the State and perused the record.
13. Learned Amicus Curiae for the appellants submits:
(i) that (PW-1) Surat Ram has not witnessed the alleged incident and his presence at the spot is doubtful. It was stated that he is a chance witness and his presence at the spot is not explained. Further, his statement was also recorded after about one week of the incident. It was also pointed out that he being the uncle of the deceased, was related to the deceased and thus, he was not an independent witness of the incident.
(ii) that (PW-2) Chigga Ram, is also a chance witness and that after part cross-examination, he did not appear for further cross-examination. It was pointed out that on 11.07.1989, his further cross-examination was deferred for 03.08.1989, but he did not appear for his cross-examination and thus, his statement remained incomplete. Learned Amicus Curiae has argued that in view of this, his incomplete statement cannot be relied upon against the accused/appellant.
(iii) that as per (PW-1) Surat Ram and (PW-2) Chigga Ram, accused- appellant Hori Lal has not caused any injury to the deceased. It was stated that as per prosecution version, accused-appellant Hori Lal was having Lathi, but these witnesses have not stated that accused-appellant Hori Lal has caused any injury to the deceased.
(iv) that even as per prosecution version, (PW-6) Badan Singh is not an eye witness of the alleged incident, he has reached at the spot after the incident. It was further stated that regarding the alleged land dispute, no documentary evidence was mentioned by the court below.
14. Per contra, it has been submitted by the learned A.G.A. that (PW-1) Surat Ram is an eye witness to the alleged incident and his evidence cannot be doubted merely on the ground that he was an uncle of the deceased. The presence of (PW-1) Surat Ram was shown in the FIR itself. PW-1 has made clear and cogent statement and there is no reason to doubt his presence at the spot. Regarding (PW-2) Chigga Ram, it was not disputed by the learned State Counsel that cross-examination of (PW-2) Chigga Ram could not be completed, however, it was stated that in his examination-in-chief and in part cross-examination, he has supported the prosecution version. Learned State counsel further submitted that (PW-1) Surat Ram and (PW-2) Chigga Ram cannot be treated as chance witness, as their names find place in the FIR itself, which was lodged without undue delay. It was further submitted that conviction of accused-appellant is based on evidence and that there is no error in the impugned judgment and order passed by the court below.
15. We have considered the rival submissions of the learned counsel for the parties and perused the record.
16. In evidence, (PW-1) Surat Ram has stated that on the day of incident, he was going to Fatehabad and at about 2.45 P.M. when he reached near Bhikanpur, a scuffle was going on between Hori Lal, Kamal Singh, Mahesh and Anek Singh. On exhortation made by Hori Lal, accused-Kamal Singh and Hori Lal ran to attack deceased Anek Singh with sticks, while accused-appellant Mahesh having an axe in his hand, hit Anek Singh with axe. Deceased Anek Singh sustained axe blow on forehead and fell down, and even thereafter, accused Mahesh gave two more blow to the deceased and thereafter, all the accused persons ran towards jungle. (PW-1) Surat Ram further stated that brothers of deceased Anek Singh, namely Prakash, Chandan and Badan Singh were informed and they have also reached there and that while Anek Singh was being taken on cot to his home, he succumbed to his injuries in the way. After some time police have reached at the spot where blood stained axe was lying, which was seized by the police vide seizure memo Ex. Ka-1.
17. (PW-2) Chigga Ram, has stated that on the date of incident, he along with (PW-1) Surat Ram was going to Fatehabad and at about 3.00 P.M. when they reached at Bhikanpur, they saw that Hori Lal and Kamal Singh having club and Mahesh having axe, were attacking deceased Anek Singh. After sustaining injuries, Anek Singh fell down. When (PW-2) Chigga Ram and others raised alarm, all the accused persons ran away towards jungle leaving axe on the spot.
18. (PW-3) Dr. R.C. Chaudhary, has conducted postmortem on the dead body of the deceased Anek Singh.
19. (PW-4) Head Constable Rajendra Prasad Sharma, has recorded the FIR and G.D. entry.
20. (PW-5) S.I. S.A. Siddiqui has conducted investigation.
21. (PW-6) Badan Singh has reached at the spot after the incident and lodged the FIR. He has also stated that there was enmity between Hori Lal and his family as they have purchased the land of the brother of Hori Lal, which was not liked by Hori Lal.
22. So far the argument, that (PW-1) Surat Ram is a chance witness and his presence at the spot is doubtful, is concerned, it would be relevant to mention that it cannot be a sole ground to doubt to his testimony, however, there are certain facts which cannot be ignored. The version of (PW-1) Surat Ram is that on the day of incident, he was going to Fatehabad and at about 2.45 P.M. when he reached at Bhikanpur, scuffle between the accused persons and the deceased was going on and thus, he witnessed the alleged incident. No doubt, he reached at the spot by chance, but in his cross-examination, he has stated that his statement was recorded after seven days of the incident by the Investigating Officer. It is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony, if it is cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal V State of Maharashtra (1992) 3 SCC 106; Mohd. Khalid V State of West Bengal (2002) 7 SCC 334; Prithvi (Minor) V Mam Raj (2004) 13 SCC 279 and Sidharth Vashisth @ Manu Sharma V State (NCT of Delhi) (2010) 6 SCC 1]. In the instant case, prosecution has not offered any explanation regarding delay in recording statement of (PW-1) Surat Ram. Further, (PW-1) has admitted that the deceased Anek Singh was his nephew in relation and further clarified that his father Ratan Singh and one Doongar Singh were real brothers and that deceased was real grand son of Doongar Singh. Thus, it is apparent that (PW-1) Surat Ram was related to the deceased. Though, generally mere relationship can also not be a factor to doubt testimony of a witness, but in the instant case, it is apparent that (PW-1) Surat Ram has reached at the spot by chance and that he is related to the deceased and further, his statement under section 161 CrPC was recorded after one week of incident. Here, it may also be stated that as per prosecution version, the accused-appellant Hori Lal was armed with club, but no injury was caused to deceased by club. When all these facts are taken together in the attending facts and circumstances of case, in the absence of any corroboration from some reliable evidence, it does not appear safe to rely upon the testimony of (PW-1) Surat Ram
23. So far as the testimony of (PW-2) Chigga Ram is concerned, though he has supported the prosecution version in his examination-in-chief, however his statement shows that on 11.07.1989, his cross-examination was deferred for 03.08.1989, but thereafter (PW-2) Chigga Ram did not appear for his further cross-examination and thus, his statement remained incomplete. Perusal of Sections 137 and 138 of Evidence Act, 1872 makes it clear that a witness first has to be examined-in-chief and then he has to be cross-examined by the adverse party. In the instant matter, it is not a case that defence has foregone or waived his right of his cross-examination or that opportunity for cross-examination was granted to adverse party to complete cross-examination, rather it appears that Court has passed order for summoning of (PW-2) Chigga Ram for his further cross-examination, but he did not appear for the same. Though in such an eventuality, it was incumbent upon the trial Court that it must have issued coercive process against this witness to secure his presence for his cross-examination in order to complete his statement, but there is nothing to indicate that learned trial court has taken any such step. In the impugned judgment, it was observed by the learned trial court that though the cross-examination of (PW-2) Chigga Ram could not be completed, but whatever cross-examination has done earlier, that was sufficient and that he has been cross-examined on all important points. Taking such a view, learned trial court has relied upon the statement of (PW-2) Chigga Ram. We are afraid, the approach adopted by the learned trial court regarding statement of (PW-2) Chigga Ram is not in accordance with law. As stated earlier, to complete the statement of a witness, the adverse party has to be given an opportunity of cross-examination, which is lacking in the present case. In view of these facts and circumstances, statement of (PW-2) Chigga Ram could not have been taken into consideration against the accused-appellants.
24. Considering the entire evidence available on record, it is apparent that only incriminating evidence against the accused-appellants is that of (PW-1) Surat Ram, but as stated earlier, he is related to the deceased and as per the prosecution version he has reached at the spot by chance. As testimony of (PW-2) Chigga Ram remained incomplete, thus, prosecution can not seek corroboration of version of (PW-1) Surat Ram from testimony of (PW-2) Chigga Ram. As stated earlier, though testimony of a chance witness is not to be believed merely on the ground that he is a chance witness, but this fact cannot be lost sight of that he is also related to the deceased and that his statement was also recorded after one week of the incident. Admittedly, another witness (PW-6) Badan Singh is not an eye witness of the incident, as he has reached at the spot after the incident. Though he has spoken about the motive by alleging that he has purchased land of brother of accused-appellant Hori Lal, which was not liked by him, but no documentary evidence was filed in this regard. Even otherwise, in the absence of any cogent and credible evidence regarding involvement of accused-appellant in the incident, mere motive would not be of any consequence. It would be pertinent to mention here that (PW-1) Surat Ram has stated that accused-appellant Hori Lal has merely tried to assault the deceased with Lathi, but the deceased has not suffered any lathi blow given by the accused-appellant Hori Lal.
25. One more aspect of the matter is that accused-appellant Hori Lal has been convicted under Section 302/34 IPC. (PW-1) Surat Ram has stated that accused-appellant Hori Lal has not caused any injury to deceased. As per prosecution version, alleged incident took place when the deceased has gone to the house of accused persons to lodge protest as they plough the land of complainant. Thus, it appears that alleged incident took place suddenly. There is no evidence to indicate that accused persons have any pre-arranged plan to commit murder of the deceased. It is settled law that the common intention to commit a criminal act depends upon facts and circumstances of the case. In the case of Hira Lal Malik v. State, 1977 CriLJ 1921, the Supreme Court observed that :
"Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then one accused can be made vicariously liable for the acts and deeds of the other co-accused."
The Supreme Court in the case of Ramesh Singh @ Photti v. State of A.P., (2004) 11 SCC 305, has extensively dealt with the scope of Section 34 of the IPC. It was observed that :
"To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held to guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Yusuf Momin AIR 1971 SC 855)''.
In case Nand Kishore v. State of Madhya Pradesh, (2011) 12 SCC 120, the Apex Court discussed the ambit and scope of Section 34 Indian Penal Code as well as its applicability to a given case, as under:
"A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
It was held that these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 Indian Penal Code must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity." Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally, i.e., he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between `common intention' on the one hand and `mens rea' as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be co-incidental with or collateral to the former but they are distinct and different.
In view of the above discussion, it is manifest that to establish a case under section 34 IPC, prosecution has to prove beyond all reasonable doubt that the appellant had the knowledge of the intention of his co accused, and they voluntarily shared the said intention. The prosecution has to establish that in furtherance of the said intention, the appellant committed certain overt act which was responsible for the murder of the deceased. It is n
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ot that any and every act done during the course of attack on the deceased would indicate that the appellant shared the common intention, and only such overt act may be relevant which indicate that the appellant also shared the intention to cause the death of the deceased. In the instant case, injuries of the deceased have not been attributed to present accused appellant Hori Lal. As per prosecution version alleged incident took place when the deceased has gone to the house of accused persons to complain about ploughing of land of complainant. Thus, it appears that alleged incident took place suddenly. There is no evidence to indicate that accused persons have any pre-arranged plan to commit murder of deceased. In such circumstances, it appears doubtful that the accused-appellant shared common intention with co-accused persons to commit murder of the deceased. 26. Further, as stated earlier, considering the peculiar facts and circumstances of the case, it would not be safe to base conviction of accused-appellant-Hori Lal on the sole testimony of (PW-1) Surat Ram, who is chance witness as well as he was related to the deceased and his statement was recorded after one week of incident, particularly when there is no evidence to show that the deceased has sustained any injury at the hands of accused-appellant Hori Lal. 27. It is one of cardinal principle of criminal jurisprudence that prosecution is required to prove its case beyond all reasonable doubt. In the instant case, in view of the evidence on record and analysis made herein above, it is apparent that the prosecution has failed to prove its case beyond reasonable doubt. Considering, the entire evidence, facts and circumstances of the case, accused-appellant Hori Lal deserves benefit of doubt. Accordingly, the impugned judgment of conviction and sentence is set aside and accused-appellant-Hori Lal is acquitted of the charge under section 302/34 I.P.C. He is on bail, thus no further order is required in his respect. 28. Appeal is allowed. 29. We appreciate the assistance rendered by Sri Sashi Bhushan Kunwar, learned Amicus Curiae and direct that Rs. 10,000/- shall be paid to him by the State Government, as his remuneration. 30. Let a copy of this order be sent to the court concerned forthwith for information.