2002 JTR(SC) 58
2002 1 BBCJ(SC) 125 ; 2002 1 BLJR 697 ; 2002 1 CCR(SC) 196 ; 2002 2 EastCrC(SC) 19 ; 2002 1 JCC 349 ; 2002 1 JT 407 ; 2002 1 PLJR(SC) 278 ; 2002 3 RLW(Raj) 359 ; 2002 8 SCC 16 ; 2003 SCC(Cri) 184 ; 2002 1 WLC 261 ; 2002 2 Supreme 234
2002(2) Supreme 234
SUPREME COURT OF INDIA
K.T. Thomas & S.N. Phukan JJ.
Parshuram Singh -Appellant
versus
State of Bihar -Respondent
Criminal Appeal No. 1392 of 1999
With
Criminal Appeal Nos. 1393/99, 1394-1395/1999
Decided on 16-1-2002
IMPORTANT POINT
For convicting a person with the help of Section 34 IPC for the oral words be made at the spot, court must have other surrounding circumstances to ensure the confidence that he made such exhortation.
Act Referred :INDIAN PENAL CODE : S.34, S.302
(A) The relevant statutory provisions include Section 302 read with Section 149 of the Indian Penal Code, which penalizes murder committed by a member of an unlawful assembly, and Section 34 of the Indian Penal Code, which addresses common intention and acts done in furtherance of such intention. In this case, the accused were charged under Section 302 read with Section 149 for the murder of Tribuna Singh, stemming from an unlawful assembly with a common object to commit the offence. The High Court applied Section 34 to evaluate whether specific individuals shared the common intention required for culpability under Section 302 read with Section 149, distinguishing those who actively participated in the unlawful assembly and executed the common object from those who, though present, did not demonstrate sufficient involvement to infer common intention to murder.
(B) Key legal principles include the doctrine of common intention under Section 34 of the Indian Penal Code, the liability of members of an unlawful assembly for offences committed in furtherance of the common object under Section 149, and the requirement of corroborative evidence to support convictions based solely on oral testimony at the scene. The case also underscores the necessity of direct participation or active involvement in the unlawful assembly to attract liability under Section 302 read with Section 149, and the role of reasonable doubt in excluding accused who did not physically perpetrate the act or demonstrate a shared intent to commit the murder.
Facts of the case:
The deceased Tribuna Singh was allegedly murdered during a dispute over a timber tree located on the boundary of lands belonging to one accused and the deceased. An unlawful assembly of 11 persons, variously armed, proceeded to the spot where the deceased was present. The prosecution case was that an accused exhorted the killing and another inflicted cut blows leading to the death, while two accused were armed with a lathi and a pistol respectively. Five witnesses testified to the events and implicated the accused.
Findings of Court:
The trial court and the High Court convicted all accused under Section 302 read with Section 149, but a division bench of the High Court acquitted six accused. The court found that while there was evidence of common intention among some members, two accused (A1 and A4) did not demonstrate active participation or a shared intent to murder, as one did not use a readily available weapon and the other did not use an inherently lethal weapon despite having the opportunity. The court held that the benefit of reasonable doubt must extend to these two accused.
Issues:
Whether the accused accused of commanding the assault and merely threatening others can be said to have shared the common intention to murder under Section 34 of the IPC, and whether their presence and failure to use available weapons suffice to attract liability under Section 302 read with Section 149 of the IPC.
Ratio Decidendi:
Liability under Section 302 read with Section 149 requires active participation in the unlawful assembly and a demonstrated common intention to execute the unlawful object, which must be inferred from clear and cogent evidence. The failure of accused to physically perpetrate the act or use available lethal weapons, coupled with the presence of reasonable doubt, mandates acquittal under Section 34 of the IPC.
Result:
The appeals of two accused are allowed, conviction and sentence are set aside, and they are acquitted and directed to be released forthwith, while the convictions of the other accused are upheld.
(A) The relevant statutory provisions include Section 302 read with Section 149 of the Indian Penal Code, which penalizes murder committed by a member of an unlawful assembly, and Section 34 of the Indian Penal Code, which addresses common intention and acts done in furtherance of such intention. In this case, the accused were charged under Section 302 read with Section 149 for the murder of Tribuna Singh, stemming from an unlawful assembly with a common object to commit the offence. The High Court applied Section 34 to evaluate whether specific individuals shared the common intention required for culpability under Section 302 read with Section 149, distinguishing those who actively participated in the unlawful assembly and executed the common object from those who, though present, did not demonstrate sufficient involvement to infer common intention to murder.
(B) Key legal principles include the doctrine of common intention under Section 34 of the Indian Penal Code, the liability of members of an unlawful assembly for offences committed in furtherance of the common object under Section 149, and the requirement of corroborative evidence to support convictions based solely on oral testimony at the scene. The case also underscores the necessity of direct participation or active involvement in the unlawful assembly to attract liability under Section 302 read with Section 149, and the role of reasonable doubt in excluding accused who did not physically perpetrate the act or demonstrate a shared intent to commit the murder.
Facts of the case:
The deceased Tribuna Singh was allegedly murdered during a dispute over a timber tree located on the boundary of lands belonging to one accused and the deceased. An unlawful assembly of 11 persons, variously armed, proceeded to the spot where the deceased was present. The prosecution case was that an accused exhorted the killing and another inflicted cut blows leading to the death, while two accused were armed with a lathi and a pistol respectively. Five witnesses testified to the events and implicated the accused.
Findings of Court:
The trial court and the High Court convicted all accused under Section 302 read with Section 149, but a division bench of the High Court acquitted six accused. The court found that while there was evidence of common intention among some members, two accused (A1 and A4) did not demonstrate active participation or a shared intent to murder, as one did not use a readily available weapon and the other did not use an inherently lethal weapon despite having the opportunity. The court held that the benefit of reasonable doubt must extend to these two accused.
Issues:
Whether the accused accused of commanding the assault and merely threatening others can be said to have shared the common intention to murder under Section 34 of the IPC, and whether their presence and failure to use available weapons suffice to attract liability under Section 302 read with Section 149 of the IPC.
Ratio Decidendi:
Liability under Section 302 read with Section 149 requires active participation in the unlawful assembly and a demonstrated common intention to execute the unlawful object, which must be inferred from clear and cogent evidence. The failure of accused to physically perpetrate the act or use available lethal weapons, coupled with the presence of reasonable doubt, mandates acquittal under Section 34 of the IPC.
Result:
The appeals of two accused are allowed, conviction and sentence are set aside, and they are acquitted and directed to be released forthwith, while the convictions of the other accused are upheld.
ORDER
There were 11 accused before the sessions court who were charge-sheeted for the murder of one Tribuna Singh on the allegation that those 11 persons formed themselves into an unlawful assembly with the object to murder him. Although the sessions court convicted all the 11 persons under Section 302 read with Section 149 (besides some other lesser offences) a division bench of the High Court of Patna had acquitted six out of the 11 persons. In regard to the present four appellants the High Court convicted them for the offence under section 302 read with section 34 of the IPC although the High Court confirmed the conviction of the offences under section 147 and 148 etc. of the IPC also. These appeals are filed by special leave by those four persons.
2. The four persons were arrayed in the trial court as A1-Rameshwar Singh, A2-Anil Kumar Singh, A3-Devender Singh and A4-Parshuram Singh.
3. According to the prosecution version the motive for the incident was a dispute over a timber tree which stood almost on the boundary of the lands belonging to the family of A3-Devender Singh and that of the deceased. Perhaps many skirmishes would have taken place on account of the said dispute. On 17.11.87 around 2.00 p.m. all the 11 persons, variously armed, went to the field of one Mangal Kumar as the deceased Tribuna Singh was then found at that spot. According to the prosecution version A1-Rameshwar Singh made an oral exhortation and A2-Anil Kumar Singh inflicted cut blows with a Farsa and then the deceased fell down. At that time A3-Devender Singh inflicted three or four cut inquiries on the deceased and one of them was on the neck. A4-Parshuram Singh had a pistol with which he hurled threats at the incoming persons. The deceased on sustaining injuries died at the spot itself.
4. Five witnesses were examined to speak to the occurrence as eye-witnesses. We are told that all the said five witnesses have implicated the above four appellants in the manner in which the prosecution has narrated the case. It is too late in the day for disbelieving the testimony of the five witnesses, particularly when the trial court and the High Court have placed reliance on their testimony.
5. Nonetheless, we have to evaluate the role played by A1-Rameshwar Singh and A4-Parshuram Singh in order to ascertain whether they would have entertained a common intention to murder the deceased. Neither of them had inflicted any injury on the deceased. A1-Rameshwar Singh had a Lathi with him and inspite of that he did not choose to give even a minor assault on the deceased. All that is said against him is he ordered the killing of the deceased. It is not shown that A1-had any particular reason for taking up the leadership of the gang. On the other hand the genesis of the quarrel was the dispute regarding the timber tree which stood on the boundary of the lands belonging to A3 on the one side and the deceased on the other. For convicting a person merely on the basis of the oral statement made at the spot the Court must have other surrounding circumstances to ensure the confidence that he made such an exhortation. If A1 had really any intention to participate in the occurrence, much less any common intention to murder the deceased, it is difficult for us to conceive as to why he did not use the weapon which was handy with him then.
6. The role attributed to A4-Parshuram Singh is that he had a pistol with him and he threatened the other persons who reached the scene. Here also, if A4 - Parshuram Singh had the common intention to murder the deceased it is highly improbable that he would have refrained from using the inherently lethal weapon like the pistol which was in his possession. He would have threatened others from coming into the fray perhaps as a measure adopted by him to save them from receiving injuries.
7. For the aforesaid reasons we have difficuly to confirm the finding that A1 - Rameshwar Singh and A4-Parmeshwar Singh really entertained common intention with the other assailants to murder the deceased. The benefit of the reasonable doubt emanating from the broad features of the case must be extended to those two accused.
8. In the result, we set aside the conviction and sentence passed on A1-Rameshwar Singh and A4-Parshuram Singh who are the appellants before us. We acquit them and direct them to be set at liberty forthwith unless they are required in any other case. We do not interfere with the conviction and sentence passed on the appellants A2-Anil Kumar Singh and A3-Devender Singh.
9. The appeals are disposed of accordingly.
Appeals disposed of accordingly.
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Parallel Citations of other Journals :
Parshuram Singh v. State of Bihar, 2002(2) Supreme 234 : 2002(1) JT 407 : 2002(1) JCC 349 : (2002) 8 SCC 16.
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