Decided on November 30,1955

Bijaysingh Dangalsingh And Anr. Appellant
The State of Madhya Bharat Respondents


Shinde, C.J. - (1.) THIS is an appeal by the accused Vijaysingh and Amolsingh who have been convicted by the Sessions Judge, Guna, under Section 302 read with Section 34 and sentenced to transportation for life.
(2.) THE facts as alleged by the prosecution are s follows: The accused Vijaysingh, younger brother of the deceased Gumansingh, was living separate from his brother Gumansingh for about ten years. A month before the occurrence there as a quarrel between the brOrs. and Gumansingh had beaten his brother Vijaysingh. Since that incident the brOrs. were not on good terms and had given up even speaking to each other. On 15 -12 -1954 at noon Gumansingh was collecting cow -dung in his cattle shed and his son Lachmansingh, aged about ten, was helping him to remove it from the cattle -shed to a pit. Vijaysingh and his friend Amolsingh came to the spot and Vijaysingh fired his gun at Gumansingh and killed him on the spot. Lachmansingh shouted (Uncle you have done a bad thing in shooting father). Both Vijay singh and Amolsingh threatened him to keep quiet on, pain of killing him. Hearing the sound of the gun Bhamribai wife of Gumansingh came out of the house and saw the accused running away. Sadarsingh, a neighbour, also came out of his house and saw the accused run lug away. He came to the cattle -shed of Gumansingh and found Lachhmansingh crying. Lachhmansingh told him that Vijaysingh and Amolslngh killed his father. Lachhmansingh went and called Pratapsingh P.W. 9 and Ratanlal P.W. 7. He told both of them that Vajaysingh shot his father. Lachhmansingh also went to the field to call his elder brother Gajrajsingh and related to him all the facts. Gajrajsingh went to the Police Station, Pachhar, which is sixteen miles from the village Zilla, where the occurrence took place and lodged the First Information Report. In this report both Vijaysingh and Amolsingh have been named. As the accused were absconding, the investigating officer Duryodhansingh P.W. 11 searched for the accused in the surrounding villages and ultimately an informer brought the accused to the investigating officer who arrested them on 20 -12 -1954. After committal the accused were tried and convicted as stated above. Consequently the accused have filed this appeal. We would deal with the case of Vijaysingh first. There is, no doubt, only one witness who saw Vljaysingh fire his gun at Gumansingh deceased. This witness is Lachhmansingh P.W. 12. It is true that Lachmansingh is a boy of 12 years. From his deposition there does not appear to be anything unnatural or inconsistent. His deposition appears to be perfectly straightforward. It is true that Lachhmansingh is the son of the deceased who had had a quarrel with the accused Vijaysingh. But the quarrel between the brOrs. does not appear to have affected the relationship of Lachhmansingh with his uncle Vijaysingh. In any case there are circumstances in this case which lend assurance to the testimony of this witness. It is now well established that in such cases the corroboration required is not the kind of corroboration necessary in the case of approvers 'Karnail Singh v. State of Punjab', AIR 1954 S.C. 204 (A). Mst. Bhamri P.W. 14 states in her deposition that hearing the report of the gun when she came out, she saw Vijaysingh and Amolsingh threatening Lachhmansingh. Sardarsingh P.W. 4 also states in his deposition that when he came out hearing the report of the gun he saw Vijaysingh and Amolsingh running away. Besides, Ratanlal P.W. 7 and Pratapsingh P.W. 9 both state that directly after the report of the gun was heard, Lachhmansingh came to the temple and told them that Vajaysingh shot his father Gumansingh. This statement made by Lachhmansingh very soon after the occurrence is relevant under Section 6, Evidence Act. There is no doubt that Lachhrnansingh was standing near the cattle -shed when the shooting took place. Therefore as a by -stander, a statement made by him shortly after the occurrence is a relevant fact, Statement made by a by -stander while still under the influence of the principal transaction is admissible as resgestae (vide Section 6 illustration A, Evidence Act). Statement made by Lachhman therefore to Ratanlal P.W. 7 and Pratapsingh P.W. 9 that Vijaysingh shot his father Gumansingh is relevant as it was made soon after the occurrence when the witness was still under the in fluence of murder. All these circumstances are sufficient to lend assurance to the testimony of Lachhman singh. In our judgment, therefore, there is no doubt whatsoever that Vijaysingh shot his brother Gumansingh and killed him.
(3.) NOW we turn to the case of Amolsingh. The learned Counsel for the Appellant laid great stress on the fact that Amolsingh did nothing except to stand by when Vijaysingh shot the deceased and argued that as Amolsingh did not participate in the act of murder, he cannot be held guilty by the operation of Section 34, Indian Penal Code. It is true that when Vijaysingh shot his brother Gumansingh, Amolsingh did nothing except to stand by. The question for determination, however, is whether his presence there was by mere accident. Section 84 reads as follows: When a criminal act is done by several persons in furtherance of 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. The scope and extent of Section 34 has been fully set out by their Lordships of the Supreme Court in two recent decisions. In 'Shreekantiah Ramayya Munipalli v. State of Bombay (S) : AIR 1955 SC 287 (B), Bose J. observed as follows: This is wrong, for it is the essence of the Section (Section 34) that the person must be physically present at the actual commission of the crime. He need not be present in the actual room, he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed. The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered by Section 109, and the stage of commission when the plans are put into effect and carried out. Section 34 is concerned with the latter. It is true there must be some sort of preliminary, planning which may or may not be at the scene of the crime and which may have taken place long beforehand but there must be added to it the element of physical presence at the scene of occurence coupled with actual participation which, of course can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play part in the pre -arranged plan when the time comes for his to act. The emphasis in Section 34 is on the word 'done': 'When a criminal act is 'done' by several persons...' It is essential that they join in the actual 'doing' of the act and not merely in planning its perpetration. The section has been elaborately explained by Lord Sumner in 'Barendra Kumar Ghosh v. Emperor' : AIR 1925 PC 1 (C). At page 7 he explains that 'Participation in action' is the leading feature of Section 34. And at page 7 in explaining Section 114 I.P.C. he says: Because participation 'de facto' 'may some times be obscure in detail, it is established by the presumption 'juris et de jure' that 'actual presence' plus prior abetment can mean nothing else but 'participation'. The presumption raised by Section 114 brings the case 'within the ambit of Section 34.' (vide paras 23 and 24).;

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