Partly allowed

Jalim and Others v. State of U.P.

Allahabad HC9 Oct 2018CRLA/3174/1982

Case brief

AI extract

What is this about?

In appeal regarding convictions under Sections 307/34 and 323/34 IPC for an assault case, the High Court acquitted appellants of Section 307 IPC due to lack of proven common intention but upheld conviction for Section 323 IPC. The court further ordered sentences to run concurrently with time already served, imposing a fine.

What did the court decide?

Appellants acquitted of Section 307/34 IPC; convicted under Section 323/34 IPC and sentenced to undergo imprisonment already served plus a fine of Rs. 1,000.

Jalim and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2018)

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Reserved on 5.10.2018 Delivered on 9.10.2018

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Court No. - 41

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Case :- CRIMINAL APPEAL No. - 3174 of 1982

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Appellant :- Jalim & Others Respondent :- State Of U.P. Counsel for Appellant :- Virendra Saran,R.K. Rathore Counsel for Respondent :- Govt. Advocate

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Hon'ble Aniruddha Singh,J.

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Heard Sri R.K. Rathore, learned counsel for the appellants Jalim and Nem Chand and learned AGA. Perused the record.

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This appeal has been filed against judgment and order dated 16.12.1982 passed by IV Additional Sessions Judge, Budaun in Sessions Trial No. 229 of 1982 convicting Jalim, Nem Chand and Kedar under sections 307 and 323 IPC both read with section 34 IPC, sentencing them to undergo rigorous imprisonment for three years and one year respectively and convicting appellant Ram Swaroop under section 307 and 323 IPC read with section 34 IPC sentencing him to undergo rigorous imprisonment for four years and one year respectively. Both the sentences to run concurrently. Accused Triloki and Raj Pal were acquitted under section 148, 307/149, 323/149 IPC.

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Appellant No.3 Kedar and appellant no.4 Ram Swaroop died in 2010 and 1988 respectively, hence appeal filed in respect of them stood abated vide order dated 25.8.2018.

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According to prosecution case, FIR was lodged on 10.12.1981 at 11:15 A.M. by Dwarki against Ram Swaroop, Triloki, Rajpal, Nem Chand, Jalim and Kedar alleging that on 10.12.1981 at 7 P.M. due to enmity Ram Swaroop, Triloki and Rajpal armed with countrymade pistols, Nem Chand, Jalim and Kedar armed with lathis came out from Arhar crop of Jhajhan Jatav, defied to apprehend Roomi and others and kill them. Ram Swaroop shot fire with gun at private part of Roomi. Accused Triloki shot fire at Dwarki but no injury was caused to him. Thereafter Nem Chand, Jalim and Kedar caused injuries to Nathu

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and Roomi with lathis. On alarm witnesses Khiali and Bhupal reached the spot and saved them.

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Injured Roomi was medically examined on 11.12.1981 at 3 A.M. He received following injuries:-

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1. Complains of pain on outer aspect of left shoulder.

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1. Contusion 9 cm x 1 cm on lower part of back of chest on right side 1.5 cm lateral to spine, read in colour.

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1. Abrasion 1.5 cm x 1 cm on front of right thigh lower part 9 cm above upper border petella.

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1. Abrasion 1 cm x 0.5 cm on outer aspect of left knee joint.

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1. Abrasion of skin from dorsum of penis from an area of 9.5 cm x 4.5 cm from junction of penis with body extending anteriorly, margins irregular, multiple hard objects palpable on the dorsum penis in the area of skin avalsion, there is clotted blood at the opening urethra.

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1. Traumatic swelling over upper third of right calf, tenderness present, complains of pain. All injuries simple in nature caused by blunt object except injury no.5 which was kept under observation and x-ray palvis including penis and x-ray of penis A.P. and lateral views were advised, present horizontally, referred to surgeon. At the time of medical examination injuries were 1/3^rd day old. X-ray of Roomi was made and in x-ray about 30 small metallic shadows were seen in penis and pelvis of Roomi which was caused by firearm. But there was no fracture and injury was simple.

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Injured Nathu was medically examined on 11.12.1981 at 3:15 A.M. and following injuries were found on his body:-

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1. Abrasion 1.5 cm x 1 cm on outer aspect of left shoulder.

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1. Contusion 18.5 cm x 1.5 cm on left side of back of chest

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8.5 cm away from skin, red in colour.

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1. Contusion 2.5 cm x 2 cm over back of left shoulder.

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1. Contusion 6 cm x 1.5 cm on front of left upper arm lower part 2 cm above creese of elbow, red in colour.

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1. Traumatic swelling over front of left forearm lower to third.

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1. Traumatic swelling on back of left forearm lower half.

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1. Traumatic swelling over antero lateral aspect of right forearm upper half.

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1. Abraded contusion 5 cm x 1 cm on front of chest, left side 3 cm above and just lateral to left nipple contusion red in colour.

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1. Traumatic swelling over entro lateral aspect of left leg lower third.

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1. Complains of pain all over the body. All the injuries were simple in nature caused by blunt object and at the time of medical examination injuries were about 1/3^rd day old.

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Sri D.P. Juyal who was the then S.O. of Thana Wazirganj started investigation. Blood stained Tahmad of Roomi was taken and its fard was prepared on 10.12.1981. On next day statement of Bhupal, Khiali and Ganga Sahai was recorded by constable Clerk Nar Singh. Thereafter site plan Ext. Ka-7 was prepared by I.O. on 11.12.1981 and he handed over investigation to Sri D.C. Sharma who submitted charge sheet against the accused under sections 147, 148, 307, 323, 149 IPC. Later on village Kesar came in Thana Kunwar Gaon from Wazirganj.

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Prosecution examined complainant eye witness P.W.-1 Dwarki, P.W.-2 Roomi(injured) and P.W.-3 Nathu(injured) as eye witnesses of the incident. P.W.6 is Dr. A.C. Sharma who made medical examination of Roomi and Nathu and has proved supplementary report of x-ray. P.W.7 D.P. Juyal has proved investigation papers and D.C. Sharma S.I. who submitted charge sheet in the case has been examined as P.W.-4. P.W.5 is Nar Singh Yadav who was H.C. At Thana Wazirganj. He has proved chick report, copy of G.D. and Fard of Tehmad which was taken from the possession of injured Roomi.

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Accused examined D.W.-1 Shreepal Lekhpal who has stated that there were two paths for coming to village Kesar from market Wazirganj. He has denied that Jhajhan Jatav had shown any crop of

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Arhar in the field of Shiam Singh in the year 1981.

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After hearing learned counsel for the parties, impugned judgment was passed. Hence this appeal.

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Learned counsel for the appellants submitted that according to FIR, Ram Swaroop shot fire at Roomi and accused Ram Swaroop is no more. No other injury of any injured was found grievous in nature, hence no offence under Section 307 IPC is made out against other co-accused.

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Learned counsel for the appellants further submitted that according to FIR, second fire was made by Triloki and he was acquitted by the Trial Court. In the evidence of facts, witnesses repeated same version as stated in the FIR. Except the role of Ram Swaroop and Triloki, general role was assigned to all accused persons. According to medical report, injuries of both injured Romi and Nathu were found simple in nature except one. Hence, against other accused except Ram Swaroop only, offence under Section 323 IPC is made out. 13. Learned counsel for the appellants next submitted that no common intention of the appellants was shown by the evidence of prosecution beyond reasonable doubt because according to FIR, only three persons were armed with countrymade pistols and other accused persons were armed with sticks(lathis) only and injuries received on the body of injured are caused by blunt object and simple in nature.

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Learned A.G.A submitted that there is sufficient evidence against accused-appellants to convict them under Sections 307/34 and 323/34 IPC.

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This Court considered rival submissions made by learned counsel for the appellants and learned A.G.A. for the State and gone through entire record.

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After scanning the evidence on record, this Court has to adjudicate whether the prosecution has proved charges levelled against accused appellants beyond reasonable doubt or not. Word 'proved' is defined under Section 3 of Evidence Act as under:-

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"Proved".-A fact is said to be proved when, after considering the

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matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

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From perusal of record, it transpires that only on the basis of section 34 IPC, three appellants namely, Jalim, Nem Chand and Kedar were convicted under Section 307/34 IPC. In criminal case, principle of vicarious liability will not apply. It is settled law that every person will be responsible for his own criminal act.

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In a criminal case, every person is responsible for his own act. Hence the question is whether on the basis of Section 34 IPC appellants Jalim and Nem Chand would be liable to be held guilty under Section 307/34 IPC or not. Section 34 IPC is reproduced hereunder:-

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" Section 34 in The Indian Penal Code Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

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19. Word used "common intention" under Section 34 IPC is very material and it can be decided on the basis of case to case facts. It is settled law that if common intention is proved but no overt act is attributed to the individual accused, section 34 of the code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 IPC cannot be invoked. In other words, it requires a prearranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds. It is also settled principle of law that burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert as it has been

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held in the case of Mrinal Das v. State of Tripura, AIR 2011 SC 3753. In this case common intention is absent as discussed above. Hence appellants Jalim and Nem Chand are not held guilty under Section 307/34 IPC.

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In the case of Vithal Laxman Chalawadi vs. Stae of Karnataka, AIR 2011 SC 173 Hon'ble Apex Court held that evidence on record suggests that accused gave chappal blow to the mother of the deceased and there is no other Act attributed to accused who appears to have joined him when tempers ran high. The allegation that he exhorted accused 1 and 2 to kill the deceased has not been satisfactorily proved to justify his conviction for murder with the help of section 34 IPC.

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In the case of Sasthi Bagdi vs. State, 2007 Crl.J, 2600(Cal) Calcutta High Court held that “In a murder case the accused persons had no plans for inflicting assault to deceased and to cause his death. Hence essential ingredients of section 34 were lacking. Sole testimony of witness saying that co-accused had chased and caught the deceased was not sufficient to warrant his conviction with the aid of Section 34.

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From perusal of record, it transpires that there is no sufficient evidence to convict the appellants under Section 307/34 IPC, hence conviction of appellants under Section 307/34 IPC is liable to be quashed.

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So far as offence under section 323/34 IPC is concerned, from perusal of record, evidence produced by the prosecution, injury report and statements of witnesses, offence under section 323/34 IPC is clearly proved beyond reasonable doubt.

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Learned counsel for the appellants submitted that incident is of year 1981, 37 years have elapsed; age of Jalim is 70 years and Nem Chand is 65 years, appellants belong to rural area and they have been in jail for some time. In the circumstances, no fruitful purpose would be served in sending them to jail and lenient view may be taken against appellants and they may be sentenced to imprisonment already undergone with fine.

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This Court in the case of Sukhbir and others vs. State of U.P. in Criminal Appeal No. 2905 of 1980 decided on 16.9.1999 and Supreme Court in Narayansingh Nathusingh vs. Natvarlal Hiralal Thakkar and another, (1981) 4 SCC 507 have reduced the sentence to the imprisonment already undergone with fine.

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In the case of Ved Ram and others vs. State of U.P., 2010(68) ACC 182 wherein appellants have already remained in jail for almost eight months and on being satisfied with the period of incarceration, the Court imposed additional fine of Rs.1000/- and altered conviction from under Section 307 IPC to under section 324/149 IPC.

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Hon'ble Apex Court in the case of State of Karnataka vs. Kaisarbaig and others, (2018) 4 SCC 403 sentenced the appellants to the period of imprisonment already undergone with fine of Rs.50,000/- in addition to what has already been paid to the victim under Section 148/324/149 IPC.

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The Division Bench of Hon'ble Supreme Court in the case of Raman Kalia and another vs. State of Gujarat, AIR 1979 SC 1261 has held that "we would, therefore, while upholding the conviction of Raman Kalia under Section 323 I.P.C. reduce the sentence to the period already served, which we understand is about a month and a half."

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Considering the age, social status, family background and gravity of offence against appellants, no fruitful purpose would be served in sending them to jail at this stage and it would be appropriate and justified to reduce sentence awarded by the appellate Court. Purpose would be served if they are convicted and sentenced to imprisonment already undergone with fine.

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The appeal is partly allowed. Appellant No.1 Jalim and appellant No.2 Nem Chand are acquitted under Section 307/34 IPC and are convicted under section 323/34 IPC and sentenced to imprisonment already undergone with fine of Rs.1,000/- (Rupees one thousand)

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each In default to deposit fine, both shall undergo simple imprisonment for three months. Fine shall be deposited within one month from today.

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Office is directed to transmit copy of this order to the Court below immediately. Compliance report be submitted within two months which shall be kept on record.

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Order Date :- 9.10.2018 P.P.

Jalim and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

Jalim and Others v. State of U.P.

Case brief

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