M.C. Jain, J.
1. The appellants Ramdan and Sumar have been convicted Under Section 307/34, I.P.C., and have been sentenced to five years' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine, to undergo further rigorous imprisonment for one month. They have also been convicted Under Section 353, IPC, and have been sentenced to six months' rigorous imprisonment by the learned Sessions Judge, Jodhpur, by his judgment dated 24th January, 1974. Their sentences have been ordered to run concurrently.
2. The prosecution case, in brief, is that on 30th of April, 1970, head constable Jangbahadur along with his party proceeded for patrolling. At about 6, p.m, they observed the foot prints of four camels having entered into Indian Border from towards Pakistan Border on pillar No. 783. The foot prints were followed by the party. Constable Thakurram was sent to the out-post Sundra to give information regarding the track There upon, Thakurram reached Sundra out-post at about 6.00, a.m. on 1-5-1970. Lakhiram along with his party also started at about 7.00, a.m., on 1-5-1970 to follow the tracks and they reigned the village Satto and the other pany met Lakhiram s party at village Satto. Jangbahadur's party was sent back to the out-post Sundra and the track was further continued to be followed by Lakhirain's party from village Satto. This party reached the out-skirts of the village Bogniyai. It was observed that the foot-prints of the two camels were diverted towards village Negarda and of the two camels proceeded straight. When these straight foot-prints were pursued. The party spotted the camels and persons on a sand dune. It is said that on hearing the sound of the vahicle those persons started running and thereafter they took position and vlien the party got down from the vehicle and were about to take their positions, the accused party started firing at them. The firing is said to have taken ac about 2.00, p.m. It is laid that the accused party continued firing and the B.S.F. party also ill' retaliation fired at the accused party. They continued to proceed ahead, whereas the accused party continued to retreat. The encounter lasted for about an hour and the police party ultimately reached near the three camels and apprehended the appellants. Three accused persons could manage to make their escape good. The goods and the belongings of the accused party were seized. It is said Jamal and Hamira were the persons who were firing at the B.S.F. party and they could not be apprehended at the spot and one more accused could not also be caught. Empties of the accused party as well as of the B.S.F. party were recovered from the spot. It is said that the accused party fired 23 rounds, whereas the B.S.F. party fired 32 rounds in defence. Lakhiram's party reached Gadra post on 2 5-1970 in the noon where the smuggled goods were deposited with the Customs Authority. On the same night at about 11 00, p.m., Lakhiram with his party along with Sumar and Ramdan leached the Police station, Girab. He made a written report Ex. P/6 to the SHO., Police Station, Girab, and handed over both the accused persons along with the empties and the live cartridges Since the place of incident fell within the jurisdiction of the Police Station, Sang are carbon copy of the report Ex. P/6 was sent to the Police Station, Sangar. On receipt of the report at the Police Station, Sangar, a case Under Sections 307, 353, I.P.C., and 25E of the Arms Act was rfgistered. The investigation of the case was handed over to the head constable Laxmansingh of Police Station, Sangar, who visited the site and prepared the site plan Ex P/1 and site notes Ex. P/2. The accused Hamira and jamal were also anested by him. Investigation was conducted from the witnesses and on completion of the investigation a challan was presented against Jamal, Hamira, Sumar & Ramdan in the court of Munsif Magistrate Jaisalmer. The learned Munsif-Magistrate, Jaialmer, committed the accused persons to the court of Sessions for trial.
3. Charges under Sections 307 read with Section 34 I.P.C. and 353 were read over and explained to the appellants, where as the other two accused persons were charged for the offences under Section 307 and 353, I.P.C. All the four accused persons however, pleaded not guilty to the charges and claimed to be tried.
4. The prosecution in this case in all examined 14 witnesses. Six witnesses, namely, PW. 4 Lakhiram, PW. 6 Bhagwansingh, PW 8 Jalsingh, PW 11 Rattiram, PW 12 Ramu Ram and PW 14 Gopalsingh were examined as eye witnesses, PW 5 Thakur Ram, was examined as a witness who saw the track coming from towards Pak Border PW 9 Kampsingh, & PW 10 Shaktidan, were examined as 'motbirs' witnesses; where as PW. 1 Laxmansingh, PW 2 Devidan, PW 3 Yukti karan, PW 7 Magsingh and PW 13 Kansingh police personnel were examined as witnesses connected with the investigation of the case.
5. The accused Sumar denied the prosecution case and stated that while he was proceeding towards his house, he was apprehended near his village. He was returning from village Sameka He went to that village in order to receive fanrne relief. The accused Ramdan also denied the prosecution case and stated that he had gone to his sister's 'susral' Negarda and he was apprehended there. He received the famine relief from village Baisala on 26-4- 1970 and from there he proceeded to his sister at village Negarda. His sister was married to Sumar's brother. When he was returning from village Negarda, he save that Sumar was already apprehened and he was also apprehended there. The other to accused also denied the prosecution case, Jamal stated that he was at his house at the time of incident. In defence two witnesses, DW 1 Sri Kishan and DW. 2 Prayag Dass, were examined.
6. The learned Sessions Judge after hearing the argument acquitled Jamal & Hamira & convicted the appellants as aforesaid. The learned Sessions Judge found that the prosecution has failed to establish beyond reasonable doubt that Jamal & Harnira participated in the encounter. These two accused persons Jamal and Hamira were given the benefit of doubt as their identity was not found to be established on evidence The learned Sessions Judge held that encounter did take place and the appellants were arrested by Lakhiram during the encounter By applying Section 34, I.P.C., the appellants were held guilty for the offence Under Section 307, I.P.C. as well as for the offence Under Section 353, I.P.C., Dissatisfied with their convictions and sentences the appellants have preferred this appeal.
7. I have heard the learned Counsel for appellants and the learned Public Prosecutor for the State and perused the record of the case carefully.
8. The learned Counsel for the appellants first of all contended that the learned Sessions Judge has acquitted Jamal & Hamira, who were charged with the offence Under Section 307, I.P.C., simplicities. The charges against the appellants were that they individually along with two acquitted accused persons acted conjointly in furtherance of common intention. When the two accused persons have been acquitted it was wrong on the part of the learned Sessions Judge to attract Section 34, I.P.C., to the case of the appellants. The appellants ought not have been convicted by the learned Sessions Judge by application of Section 34, I.P.C. When Jamal and Hamira have been acquitted it should have been taken that they were not present at the scene of the occurrence and as such no common intention could have been formed by the appellents with those who have been acquitted. In support of his contention the learned Counsel placed reliance on some decisions.
9. His second contention is that on the evidence on record Section 34 I.P.C., would not have been invoked and the learned Sessions Judge was wrong in holding the appellants guilty Under Section 307 read with Section 34 I.P.C.
10. It was also contended by the learned Counsel for the appellants that even against Jamil and Hamira offence Under Section 307, I.P.C., is not made out and so the question of holding the appellants guilty for the offence under Section 307 read with Section 34, I.P.C., does not arise.
11. The learned Counsel further contended that offence Under Section 353, I.P.C., is in no way brought home to the appellants and for this offence as well the appellants have been wrongly convicted.
12. The learned Public Prosecutor refuted all the first three contentions advanced by the learned Counsel for the appellants and referred to some case law. So far as the last contention regarding the offence Under Section 353, I.P.C., is concerned be did not support the conviction entered into by the learned Sessions Judge in view of the fact that there was no evidence led by the prosecution to the effect that the appellants intentionally assaulted or used any criminal force against the police personnel in the execution of their duties in order to prevent them from discharging their duties.
13. I have mentioned the contentions of the learned Counsel for the appellants in the order in which they were advanced before me, but I think it proper that the second contention may be dealt with first. In case it is found that the evidence on record does not at all justify the application of Section 34, I.P.C., in that event first and third contentions would not be of mast consequence and it would not be necessary to go into them.
14. As regards the second contention the evidence on record needs scrutiny. The learned Sessions Judge, while dealing with the question of common intention proceeded to state that in all five persons were sitting on the sand-dune (Tiba) and as soon as they saw the party of Likhiratn, they started firing at them. It may be stated that the admitted case of the prosecution is that Jamal and Hamira were the persons who were armed with rifles and it is. they who started firing. The appellants were unarmed. Admittedly they could not & did not fire. The learned Sessions Judge simply stated that the accused Ramdan and Suroar acted with them and this would show that they had formed a common intention with the three others to shoot and kill the members of the party of Lakhiram so that they ma) not be arrested. The learned Sessions Judge then proceeded to state, 'Thus, it is amply proved that Ramdan and Sumar had formed the aforesaid common intention with the three other persons who are now unknown in the case. In my opinion, it is proved beyond reasonable doubt that accused Ramdan and Sumar are guilty of the offence Under Section 307/34, I.P.C.' It would appear from what has been observed by the learned Sessions Judge that he has not scrutinised the evidence on record. The essentials of Section 34, how had been met with in evidence, have not at all been accused. On the one hand he states that as soon as the accused persons saw the B.S.F. party they started firing at them, but at what stage of the occunence common intention was formed has not been dealt with by the learned Sessions Judge. Further in what manner the present appellants participated, has also not been considered by the learned Sessions Judge and he simply stated that the present appellants also acted with them. He should have considered the evidence and circumstances in their entirety and thereafter should have arrived at the conclusion as to whether from the proved circumstances an irresistible inference can be deduced or not that the accused persons had formed a common intention & acted in furthereance of that common intention. In this state of the finding of the learned Sessions Judge, in my opinion, it has become necessary for this Court to scrutince the evidence on record regarding the application of Section 34, I.P.C. Before doing so it would also be proper to the into consideration the relevant law on the applicability of Section 34, I.P.C.
15. I may first of all refer to the most celebrated and oft quoted judgment of the Privy Council Mahbub Shah v. Emperor AIR 1945 PC 118. In this case their Lordships of the Privy Council observed that care must be taken not to confuse same or similar intention with common intention; the partition which divides 'their bounds' is often very thin, nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. In their Lordship's view, the inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.
16. In Ramchander v. State of Rajasthan 1970 RLW 118 the Division Bench of this Court considered this question in para 10 and it was observed that.
Common intention within the meaning of Section 34 I.P.C. implies a prearranged plan. To convict the accused of a crime with the help of Section 34, I.P.C. the burden is upon the prosecution to prove that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult, if not impossible to procure direct evidence to establish the intention of an accused person. Intention has to be inferred from his act or conduct or other relevant circumstances of the case. There is also a distinction between the same or similar intention and common intention and an inference of common intention within meaning of the term in Section 34, I.P.C., should not bs reached, unless it is a necessary inference deducible from the circumstances of the case: vide Mahbub Shah v. Emperor (supra). Whereas here is no indication whatever or premeditation or of a pre-arranged plan, the mere feet that the two accused were seen at the spot or tint the two accused fired as a result of which one died and two others received simple injuries could not be held sufficient to prove or to infer a common intention. Common intention referred to in Section 34 presupposes a prior meeting of the minds. This does nit mean that there must be a long interval of time between the formation of the common intention & the doing of the act. It is also not necessary to adduce direct evidence of the common intention. The common intention may conveniently be inferred from the surrounding circumstances & the conduct of the parties. The existence of the common intention shared by the accused persons is, on ultimate analysis, a question of fact. At any rate, the crucial circumstance is that the plan must precede the act constituting the offence.
17. In Gajjan Singh v. State of Punjab : 1976CriLJ1640 it was observed as under:
But the mere fact that the member of the mob came together, to be more specific in view of the judgment of the trial Judge Birkha Singh and Gajjan Singh came together armed with rifles, is not sufficient to indicate that they had come having shared a common intention to commit the murder. Only one shot was fired on the head of Ajit Sinah by Birkha Sirgh. No shot was fired by Gajjan Singh on him. He had no grudge against him. Gajjan Singh did fire a rifle on Dalvidder Singh with the intention to kill him but fortunately he escaped death, Admittedly, Ajit Singh was not residing in the Haveli wherein the occurrence took place, ft was per chance that be happened to be there. It cannot therefore, be said by any stretch of imagination that the appellant and his companion Birkha had any pre arranged plan to kill Ajit Singh. On the evidence and the facts found the inference of Gajjan Singh 's sharing the common intention with Birkha Singh or the murder of Ajit Singh is not possible to be draan. It may be that he had such common intention. But it is difficult to fill the gap between 'may' and 'must' and to say that Gajjan Singh must have shared the common intention for causing the death of Ajit Singh, In our opinion the High Court had committed an error of law in sustaining the conviction of the appellant Under Sections 304/34 for the murder of Ajit Singh notwithstanding the missing link in the evidence to supply facts to justify the said conviction.
18. Harskad Singh Pahelvansingh Thakore v. The Stats of Gujarat : 1977CriLJ352 it was observed as under:
When a murderous assault by many hands with many knives has ended fatally, it is legally in permissible to dissect the serious one from others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstance that One man's stab falls on a Jess or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder Conjoint complicity is the inevitable inference when a glory group animated by lethal intent accomplish their purpose cumulatively. Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication See Amir Hussein v. State of UP : 1975CriLJ1874 ; Sdaina Singh v. State of Rajasthan : 1976CriLJ835 Lord Summer's classic legal short hand for constructive criminal liability, expressed in the Miltonic verse 'they also serve who only stand and wait' a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting with he? tile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation No. finer justice niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code.
19. It would appear from (he principles enunciated in the decisions for application of Section 34, I.P.C. that there should be prior meeting of minds and it must precede the criminal act and further there should be participation of all in furtherance of that common intention. It would also appear that direct evidence on formation of common intention may not be easily available and forth coming and the question has to be judged from the conduct of the alleged participators. The evidence is further required to be judged cautiously and with great circumspection. It is only when the inference of common intention is irresistible such an inference should be reached, else if on evidence it is possible to say that there may not be any con men intention then in that circumstance the benefit of reasonable doubt would go to the accused. It is also note worthy that the presence alone would not attract Section 34, I.P.C., unless it is accompanied with some participatory conduct and at times it is possible that the common intention may arise at the spur of the moment.
20. In the light of these principles the evidence on record may be examined.
21. There are in all six witnesses of the occurrence. P.W. 4 Lakhiram has stated that on seeing them all the five accused persons took position when they were at the distance of about 300 yards. Two of them were armed with rifles and they started firing at them. As regards the appellants and the fifth man it was stated by this witness that the B.S.F. party fired at the two rifle men and the other three accused persons, as the other three accused persons were holding the two rifle men. It has not come in this evidence as to in what manner the appellants were extending their helping hand and in what manner the appellants participated in the occurrence. According to this witness, soon after seeing the B.S.F. party the two rifle men started firing at them.
22. P.W. 6 Bhagwansingh stated that when their truck stopped, the five accused persons, who were sit ting at one place, took position at different places and started firing at them. There were two rifle men, who started firing. He also stated that the appellants were unarmed and did not resort to firing, but the role which this witness has assigned to the appellants, is that during the firing the appellants were coming to and going away from the two rifle men. Except this sort of participation, no other participation has been stated by this witness.
23. Similar is the statement of P.W. 8 Jalsingh. He stated that when the truck stopped, the two rifle men started firing at them. He has not stated that the other three took any position He has stated that the accused persons, who were apprehended at the spot, is that the present appellants, were coming to the rifle men and were supplying some articles, but he added that he did not observe as to how they were helping the rifle men. He also stated that the unarmed accused persons were visiting the two points from where the rifle men were firing after taking position.
24. P.W. 11 Ratti Ram has also likewise stated that the appellants were visiting the rifle men.
25. P.W. 12 Ramu Ram has not stated as the aforesaid witnesses have stated that the appellants were visiting the rifle men. He has simply stated that the other three accused persons were also there with the rifle men empty handed.
26. P.W. 14 Gopalsingh stated that the appellants did not fire but in the beginning they ran hither and thither, but when the shots were fired they sat under the Jal tree, from where they were arrested.
27. From the above evidence it appears that the B.S.F party spotted the five persons on the sand dune and seeing the B.S.F party the two rifle men went into operation. As regards the two appellants, to me, it appears that the evidence of the prosecution is vague in nature. The only evidence against the appellant is that they were visiting the rifle men and going away from them, and only one witness has stated that they used to pass some articles to the rifle men, but that witness simultaneously stated that he has not seen in what manner they were helping the rifle men. If one looks to the evidence of Gopalsingh it would appear that his evidence to is contrary to what the other witnesses have stated. He has rather stated that when the firing was opened the appellants sat under the Jal tree Similarly Ramu Ram also does not support and corr borate the testimony of other witnesses, as he simply states that there were three persons empty handed in the company of the two rifle men. It may be mentioned that the occurrence took place suddenly when the B.S.F. party was seen. It may be further stated that how all the five persons happened to be there at the spot, is not known as there is no evidence how they came to be assembled there. Simply because some truck was pursued, it cannot be said that all the five crossed the Indian Border from Pakistan. Such an inference cannot be drawn. There is to evidence to this effect that the appellants exhorted to fire at the B.S.F. party or in any way instigated the two rifle men. Thus, firstly the evidence with regard to the participation of the appellants is inconsistent. Ramu Ram and Gopal Singh do not state about the participation by the appellants and their evidence is inconsistent with the other witnesses. Secondly, even the evidence of the other witnesses is vague in its charater in what manner and whit sort of assistance was rendered by the appellants, has not been deposed to by the witnesses. It is possible that the appellants may be running hither and thither to take shelter behind the rifle men or otherwise. Thus the evidence regarding the conduct of the appellants at the time of incident cannot be taken to be of such a nature from which it can be deduced that the appellants were acting conjointly with the two rifle men having formed any common intention. This possibility cannot be ruled out that on seeing the BSF party the two riflu men spontaneously went into action without any deliberation with the appellants. In any event from the facts and circumstances of the case a reasonable doubt arises that the appellants formed any common intention with the two rifle men and that the two rifle men acted in furtherance of that common intention. The learned Public Prosecutor submitted hat it was difficult for the Border Security Force personnel to observe as to and in what manner the appellants were helping, but the evidence of the witnesses is specific that the appellants were visiting the rifle men and were helping them. The two rifle men along with three others tried to make good their escape; but the appellants were apprehended at the spot & that the appellants also took positions, as stated by the witnesses. So from this conduct of the appellants inference of common intention arises. As discussed above, I am unable to agree with the submission of the learned Public Prosecutor. In my opinion, an irresistible inference cannot be drawn from the facts and circumstances as brought out in evidence in this case.
28. Thus, on the facts and circumstances of the case, in my opinion, Section 34 cannot be attracted to the case of the appellants and their convictions and sentences for the offence under Section 307/34, I.P.C., cannot be sustained and deserve to be set aside. In view of my conclusion on the second contention of the learned Counsel for the appellants, it is not necessary to go into the first and third contentions, though in respect of these two contentions elaborate arguments were advanced and much case law was cited from both the sides, As the judgment of the case turns on the second contention, so I do not propose to go into the first and the third contentions.
29. It was also contended that the entire story of encounter is fake and concocted one and in this connection as well much has been said on behalf of the appellants that the evidence as to the type of empties and firearms is discrepant and the record has not been produced to prove what sort or empties were recovered from the spot belonging to the accused party & the BSF party. Rifles of the accused persons have not been recovered and the alleged empties of the two rifles, the do not stand connected. Further the empties recovered from the spot had not been packed and sealed at the spot. In this connection suffice it to say that there is overwhelming convincing evidence from the side of the prosecution that the encounter did take place. This evidence has been dealt with by the learned Sessions Judge. In this regard whatever submissions have been made by the learned Counsel for the appellants may, even if taken to be true, still the alleged infirmities & discrepancies do not a any way affect the oral testimony of the prosecution witnesses and the oral testimony of the persecution witnesses inspires confidence and the learned Sessions Judge believing' the prosecution evidence, in my opinion, rightly found that the encounter did take place.
30. So far as the offence Under Section 353, I.P.C., is concerned I have not been referred to any evidence that that appellants in any way used any criminal force or assaulted the BSF party to prevent or obstruct it in discharging of its duty. The only evidence is that the appellants also tried to run away, but they were caught hold of by the BSF party. This conduct on the part of the appellants cannot be considered in any way sufficient in holding them guilty for the offence Under Section 353, I.P.C., The essential ingredients of the offence Under Section 354, I.P.C. are not satisfied from the evidence on record. Thus, their conviction for the offence Under Section 353, I.P.C., also deserves to be set aside.
31. In the result, this appeal is accepted, the convictions and sentences of appellants for offences Under Section 307/34 and Under Section 353, I.P.C. are set aside and they are acquitted of these offences. They are already on bail so the need not surrender. Their bail bonds are discharged.