Arjun Thakur Alias Singh and anr. Vs. State - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - an injured person is normally the best witness, unless a case of false implication is made out. existence of a common intention in several ,persons, who commit the criminal act, and the doing of criminal act in furtherance of that common intention are the essential requirements for the applicability of section 34. when these two requirements are satisfied, each of such persons is liable for the entire criminal act in the same manner as if he alone had done it irrespective of the fact whether he was present at the spot or not. the fact situation indicated above clearly shows existence of common intention and therefore, section 34 has been rightly applied.a. pasayat, j.1. the appellants along with two others namely ramesh singh and sukadev singh alias sukha allegedly committed acts attracting culpability for punishment under section 307 and 506 read with section 34 of the indian penal code, 1860 (in short, 'ipc'). the appellants (hereinafter referred to as the 'accused') faced trial before the learned additional chief judicial magistrate-cum- assistant sessions judge, rourkela, who found them guilty for offences punishable under section 307/506 read with section 34, ipc and convicted them. each of them was sentenced to rigorous imprisonment for ten years for the offence under section 307, ipc and two years for the offence under section 506, ipc. the sentences were directed to run concurrently. the trial was taken up in respect of the present appellants as the other two were considered to be absconders.2. the factual matrix of prosecution version runs as follows ;on 10-12-1s89 at about 3. 30 p. m. dipu alias devendra sharma, mathews phillips and kailash upadhyaya were talking by the road side in front of spare part shop of the last named styled j. k. auto traders situated on the power house road. at that time an auto- rickshaw bearing registration no. d1c 6547 driven by sukadev singh alias sukha stopped near them and accused arjun thakur alighted with a revolver, and accused santosh alias tian barik and accused ranku alias ramesh singh with a knife each in hand. accused arjun threatened dipu at the point of revolver for having given evidence against one of his friends, who had done away with the life of a man, a hardcore criminal. accused santosh placed a knife on his left side neck and also threatened him. dipu caught hold of that knife to save himself but santosh snatched away the knife causing incised injury on his right palm. santosh asked him to go to the tempo with them. since he resisted. arjun threatened to kill him by means of a revolver. suddenly ramesh gave a stab blow on his belly with a knife, with the motive and intention to kill him. since all these happened in the broad day light, there was a turmoil in the locality, even tempo of life was disturbed and people started running helter-skelter. purushottam sharma, father of dipu (pw 1) rushed to the spot to save his son's life. the accused persons left the injured on the spot and fled away in the tempo. immediately pw 1 removed dipu to ispat general hospital in a rickshaw and on the way the injured disclosed the names of accused persons on the basis of which pw 1 lodged a report before the police.3. during trial the accused persons pleaded innocence.4. to further prosecution case 10 witnesses were examined. dipu alias devendra, the injured was examined as pw 8, kailash upadhyaya and mathews phillips were examined as pws 2 and 3 respectively. they are stated to be. eye-witnesses to the occurrence. pw4 is also stated to have witnessed the occurrence. pw9 is the doctor who examined the injured. on evaluation of evidence on record, learned trial judge found the accused persons guilty and convicted and sentenced them as aforesaid.5. the learned counsel for the accused appellants has strenuously urged that even if the prosecution version is accepted in toto, accusations do not bring home the charges against them. it is stated that section 34 has no application to the facts of the case, there being no common intention. further it is stated that the ingredients to attract punishment under section 307, ipc are absent. the residual plea is that the sentence is very harsh. the learned counsel for state on the other hand supported the judgment of conviction and sentence. a faint attempt was made to urge that the witnesses' have criminal propensity, were involved in several criminal activities earlier and in order to falsely implicate the accused parsons a false case has been foisted against them.6. hostility is a double edged weapon. it can be the basis for false implication, and can be the foundation for the alleged act. pw 8 is the victim of the attack. an injured person is normally the best witness, unless a case of false implication is made out. it would be natural to conclude that he would not implicate an innocent person and protect the real culprit.nothing material has been pointed out by the learned counsel for the accused appellants to discard the evidence of pws 2, 3, 4 and 8. the same has been elaborately dealt with by the learned trial judge, and i find no reason to differ from his conclusion that the evidence is credible and cogent.7. coming to the question whether section 307, ipc has any application, it is necessary to take not' of the injuries noticed by the doctor (pw 9), which are as follows :(i) stab wound 3' x |' x 1' deep over epigastric region ;(ii) incised wound 3' x 1/2' x bone deep over palmar aspect of the left hand.the doctor has opined that injury no. (i) was grievous in nature ; and was dangerous to human life in ordinary course.sec. 307 applies to attempt to murder, in which there has been not merely a commencement of an execution of the purpose, but something little short of a complete execution. the consummation being hindered by circumstances independent of the will of the author. the act or omission, although it does not cause death, is carried to such a length as, at the time of carrying it to that length, the offender considers sufficient to cuase death. it is sufficient if the act was one capable of causing death and there was an intention to cause death. a person commits an offence under section 307 when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. (see om prakash v. state of punjab : air 1961 sc 1782). to convict under this section it is not necessary to show that bodily injury capable of causing death was inflicted. what the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. attempt need not be penultimate act. it is sufficient if there is intent coupled with some overt act in execution thereof. (see state of maharashtra v. balaram bama patil : 1983 cr lj 331 (sc). an attempt is an intentional preparatory action which fails in its object, which so fails through circumstances independent of the person who seeks its accomplishment. an attempt is an intended, but unfinished, crime, tending, but failing, to effect its commission. this view was expressed in r. v. linneker : lr (1906) 2 kb 99 specific intention to commit the crime of murder is a necessary pre-requisite of the section. to bring a case within the ambit of section 307, the prosecution has to make out facts and circumstances envisaged by section 300, ipc. if the ingredients of section 300 are wholly lacking, there can be no conviction under section 307. unless ft can be said that the intention or knowledge of the accused was to cause such bodily injury as would come within one of the four clauses of section 300, ipc, he cannot be held guilty of an offence under section 307, ipc. in the case at hand injury no. 1 was caused on the upper and middle region of the abdomen, located within the sternal angle, a vital and vulnerable part of the body. the evidence of pw 9 indicates that the injury was dangerous to human life in ordinary course. the learned trial judge, therefore, was justified in applying section 307, spg.8. coming to the question whether section 34 has application, it has to be borne in mind that he provision deals with doing of separate acts, similar or diverse, by several (two or more) persons ; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself. so, to fix constructive liability on each of the several accused under this section, there must be participation in action with common intention though the different accused might have taken different parts. the leading feature of this section is, therefore, participation in action. a common intention connotes a meeting of mind to commit an offence and participation in the commission of offence in furtherance of that common intention and in such case application of section 34 comes in. participation need not in all cases be by physical presence. existence of a common intention in several , persons, who commit the criminal act, and the doing of criminal act in furtherance of that common intention are the essential requirements for the applicability of section 34. when these two requirements are satisfied, each of such persons is liable for the entire criminal act in the same manner as if he alone had done it irrespective of the fact whether he was present at the spot or not. the crucial test as to the applicability of constructive liability, under section 34 is, therefore, to be found in the phrase 'in furtherance of the common intention of all the section provides not only for liability to punishment but also for subjection of a conspirator to the jurisdiction of court, even if he conspires at a place beyond jurisdiction, provided overt acts are done within such jurisdiction. section 34 pre-supposes sharing of a particular intention by more than one person to do a criminal act. the words 'criminal act' are used in section 34 in the broadest possible sense. the participation required by this section may be of a passive character, provided that it is done with the intention of assisting in furtherance of the common intention of them all or there is a readiness on the part of man so standing to play his part in the pre-arranged plan when the time comes for him to act. it may be noted that the words 'in furtherance of the common intention of all' were not to be found in the original section. they were added by sect of act xxvii of 1870. the essence of section 34 is a simultaneous consensus of the minds of the persons participating in the criminal action to bring about a particular result. in the oxford english dictionary, the word 'furtherance' is defined as 'the action of helping forward'. adopting this definition, russel says in 'russel on crimes'' 12th edition, volume 1 (pages 487-88) that it indicates some kind of aid or assistance producing an effect in future, and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step, intentionally taken for the purpose of effecting that felony. it was observed by russel that any act of preparation for the commission of felony is done in furtherance of it. in shankarlal v. state of gujarat; air 1965 sc 1260 the apex court has interpreted the word 'furtherance' as 'advancement or promotion'. a similar intention would not be enough to bring the action within the meaning of sao. 34. in order to attract the provisions of this section, it is not enough that every accused should possess the same intention.'common intention' as used in section 34 should not be mixed up with the 'common object' as required in section 149. the two expressions are not synonymous, and they have been used in different senses and should be kept distinct. in barendra kumar ghosh v. emperor ; air 1925 pc 1, it was pointed that there is difference between 'object' and 'intention'. because although 'object' may be common, the intentions of several members of an unlawful assembly may differ and, indeed, may be similar only in respect that they are unlawful. though both the sections relate to vicarious or collective liability, and surfacially involve some amount of resemblance and overlapping, section 34 restricted to common intention and does not embrace any knowledge. under section 149 it is the knowledge which is necessary to attract culpability. the fact situation indicated above clearly shows existence of common intention and therefore, section 34 has been rightly applied.9. coming to the question of sentence, i feel that the sentence of ten years in respect of offence punishable under sec 307, ipc appears to be on the higher side. custodial sentence of five years would meet the ends of justice. the sentence awarded m respect of conviction under section 506, ipc is maintained. it is to be mentioned that no argument was advanced by the learned counsel for the accused about conviction under this section and the sentence there against. the sentences awarded in respect of offences punishable under section 307 and 506 read with section 34, ipc are to run concurrently.the criminal appeal is dismissed subject modification in sentence as aforesaid.