Delhi District Court
State vs Vimal @ Manav on 28 March, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01), CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000637-2008
SC No. 28314/2016
FIR No. 269/2007
U/Sec. 324/307/34 IPC & 27/54/59 Arms Act
P.S. Bara Hindu Rao
STATE VERSUS VIMAL @ MANAV
(i) SC No. of the case : 28314/2016
(ii) Date of commission of offence : 23/25.11.2007
(iii) Name, parentage and address : (1) Vimal @ Manav
of accused S/o Sh. Radhey
Shyam
R/o 9316, Gali
Bhagat Singh,
Tokriwalan, Azad
Market, Delhi
(2) Laxman @ Anna
(expired)
S/o Dhram Pal
R/o 9316, Gali Bhagat
Singh, Tokriwalan, Azad
Market, Delhi
(3) Narender @ Kaku
(expired)
S/o Bhoop Singh
SC No. 28314/2016
State vs. Vimal @ Manav
FIR No. 269/2007
Page 1 of 59
R/o 9424, Gali Jhulelal
Mandirwali,
Tokriwalan, Azad
Market, Delhi
(iv) Offences complained of : 307/34 IPC & 27
of Arms Act
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused namely Vimal
@ Manav stands acquitted.
Date of Institution : 13.01.2011
Date of Judgment reserved on : 15.03.2024
Date of Judgment : 28.03.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh. V. C. Gautam S/o Sh. Dharampal vide complaint dated 24.11.2007 and that he is an Advocate by profession. On 23.11.2007 he alongwith his friends Sh. Deepak Sharma and Sh. Raman Aggarwal all of whom are Advocate were going on motorcycle driven by Sh. Raman Aggarwal. When they had reached at Pul Mithai, Azad Market at Shop No. 276 then around 10:30 PM their motorcycle went into disrepair. One boy was urinating at SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 2 of 59 said place. When the complainant asked him not to do so on which he had entered into argument with the complainant. One more boy was standing with him having height of around 5' 7" with fair complexion.
The boy who was urinating had went into the street and called 2 more boys. One of the boy had hockey-stick in his hand and the other boy had a knife like sharp object in his hand. The knife was hit upon the cheek of Sh. Deepak Sharma and complainant with Sh. Raman Aggarwal were beaten. Thereafter the accused person had ran away. Sh. Raman had made a call to the police at 100 number and complainant with his two friends had went to the hospital. The complaint is Ex.PW1/A and the rukka is Ex.PW10/B. The Ravangi tehrir is Ex.PW5/B and the FIR is Ex.PW5/A which was lodged at PS Bara Hindu Rao vide no. 269 dated 24.11.2007.
2. Charge under Section 307 r/w Section 34 IPC was framed against all the accused and additional charge was also made against accused Vimal @ Manav under Section 27 of Arms Act having got recovered one knife/chura to which accused person did not plead guilty and claimed trial. The case against accused no. 2 Laxman has already stood abated vide order dated 22.02.2012 who had expired on 13.10.2011 after due verification from PS Bara Hindu Rao, Delhi. The case against accused no. 3 Narender @ Kaku has already stood abated vide order dated 21.09.2021 who had expired on 07.12.2020 after due verification from PS Bara Hindu Rao.
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 3 of 59
3. The prosecution has examined PW-1 to PW-15 and PW-1 is the complainant / Sh. V.C. Gautam. The statement of accused Vimal @ Manav was recorded under Section 313 Cr. P C on 13.12.2023. Accused Vimal @ Manav has preferred not to lead any evidence in defence.
4. Final arguments are heard from both the parties and record perused.
5. The first ingredient the prosecution has to prove is that the death of a human being was attempted by the accused person. (Since the origin of the dispute is with reference to the person the boy who was passing urine at the spot therefore the said boy for the purpose of reference is hereinafter referred as the FIRST BOY.) It is deposed by PW-1 that the altercation has started between PW-1 and the boy by whose side another boy was standing. The FIRST BOY asked the another boy standing to his side to go inside the gali. The FIRST BOY involved the PW-1 and other victim in the conversation. The boy who had went inside the gali brought one more boy with him who had hockey-stick in his hand. The FIRST BOY asked the boy came with hockey that "ye vakil hai, ye Court main bahut tang karenge, inhe marna hai". The boy who went inside the gali to call another boy had given a knife blow on the colleague of PW-1 i.e. Sh. Deepak Sharma who is PW-
12. Hence as per deposition of PW-1 it is not the FIRST BOY who had given the knife blow but it was the boy who was standing with the SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 4 of 59 FIRST BOY who had given knife blow on PW-12 Sh. Deepak Sharma. The above fact is deposed by PW-1 in his examination in chief dated 11.02.2011 at page No.1. PW-12 in examination in chief dated 23.09.2015 had deposed that with the FIRST BOY another boy was standing and that another boy had short height and dark complexion. The FIRST BOY had fair complexion and tall in height. PW-1 had deposed that the FIRST BOY had altercation with him whereas PW-12 had deposed that both boy had altercation with all the victim and the said FIRST BOY and the boy standing with the FIRST BOY were correctly identified by PW-12 before the Court as the same boy who were arguing with them. During such arguments it is alleged that the accused person came to know that the victim are Advocates. PW-12 had deposed that the tall boy and not the short boy went inside the gali to call another boy whereas PW-1 had deposed that the tall boy/FIRST BOY had engaged them in the conversation and the short boy with dark complexion had went inside the gali and brought another boy. Hence PW-1 and PW-12 had deposed contradictorily to each other that which of the boy went inside the gali to call the third boy and hence doubt has arisen in the case of the prosecution about the manner in which the incident had started between the parties.
6. PW-1 has deposed that the boy who went inside the gali was of short height and dark complexion gave knife blow on his colleague Mr. Deepak Sharma/PW-12 whereas PW-12 has deposed that the tall boy SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 5 of 59 had went inside the gali who had fair complexion and who came back with another boy. The tall boy / FIRST BOY had knife in his hand namely accused Manav tried to give knife blow on the neck of PW-12. Hence the version of both PW-1 and PW-12 is contradictory not only in that who had went inside the gali but also that which of the accused had given knife blow to PW-12. Hence this has created doubt in the case of the prosecution that which of the accused had hit knife on PW-12. The knife was recovered on 25.11.2007 whereas the alleged incident is dated 23.11.2007. Hence the recovery of knife was after two days. The opinion of doctor was taken on 27.11.2007 vide Ex.PW1/DA and therefore the knife as recovered before such date could be shown to the doctor with the injury and opinion could be taken if such injury could be caused by such knife. Hence the alleged recovery of knife from the accused on such date is doubtful and the nature of injury on PW-12 by such knife are also not proved on record.
7. The prosecution has to prove that the accused had intention to commit murder in furtherance of which the act was done by the accused. The relevant citation in this regard is The State of Madhya Pradesh Vs. Kanha @ Omprakash on 4th February, 2019 Criminal Appeal No. 1589 of 2018 (Arising out of Special Leave Petition (CRL) No. 1433 of 2013) from Hon'ble Supreme Court of India. The relevant para of which is reproduced hereasunder:
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 6 of 59 10 Section 307 of the Penal Code reads thus:
"307.Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.--When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
Illustrations
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.
(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section." The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". The second part of Section 307, which carries a heavier punishment, refers to hurt‟ caused in pursuance of such an „act‟. 11 Several judgements of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v Balram Bama Patil1, this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted:SC No. 28314/2016
State vs. Vimal @ Manav FIR No. 269/2007 Page 7 of 59 "9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted.
Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. 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 this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." (Emphasis supplied) This position in law was followed by subsequent benches of this Court. In State of M P v Saleem2, this Court held thus:
(1983) 2 SCC 28 (2005) 5 SCC 554 "13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." (Emphasis supplied) In Jage Ram v State of Haryana3, this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:
"12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish
(i) the intention to commit murder; and
(ii) the act done by the accused.SC No. 28314/2016
State vs. Vimal @ Manav FIR No. 269/2007 Page 8 of 59 The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc." The above judgements of this Court lead us to the conclusion that proof of grievous or life- threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained (2015) 11 SCC 366 from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.
Xxxxxxxxxx 16 The evidence establishes that the injuries were caused by a fire- arm. The multiplicity of wounds indicates that the respondent fired at the injured more than once. The fact that hurt has been caused by the respondent is sufficiently proven. The lack of forensic evidence to prove grievous or a life-threatening injury cannot be a basis to hold that Section 307 is inapplicable. This proposition of law has been elucidated by a two-judge bench of this Court in Pasupuleti Siva Ramakrishna Rao v State of Andhra Pradesh4 :
"18. There is no merit in the contention that the statement of medical officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this section since the act resulted in Injury 5 which is a ligature mark of 34 cm × 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes "hurt". It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 9 of 59 telephone wire around his neck and telling him that he should die. We also do not find any merit in the contention on behalf of the accused that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thums up bottle and a telephone wire used, as weapons.
That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused."
(Emphasis supplied) 17 In the present case, the nature of the injuries shows that there were eleven punctured wounds. The weapon of offence was a firearm. The circumstances of the case clearly indicate that there was an intention to murder. The presence of 11 punctured and bleeding wounds as well as the use of a fire arm leave no doubt that there was an intention to murder. Thus, the second part of Section 307 of the Penal Code is attracted in the present case. The judgement of the High Court overlooks material parts of the evidence and suffers from perversity. (2014) 5 SCC 369 18 Hence, we set aside the judgement of the High Court and restore the order of conviction by the Trial court under Section 307 of the Penal Code as well as the sentence awarded of rigorous imprisonment of 3 years and a fine of Rs. 1000. xxxxxxxxxxx 8.1 The Hon'ble Supreme Court of India in case titled State of Maharashtra vs. Kashirao & Ors on 27 August, 2003 Case No. Appeal (Crl.) 124 of 2003 has laid down essential ingredients required to be proved in case of an offence under Section 307 IPC. It was held that the offence under Section 307 IPC has all the ingredients of the offence of murder except death of the victim. It is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assault, the weapon used are relevant factors. The circumstances under which the injury was caused, the manner in which the injury was inflicted, whether the offence occurred out of a SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 10 of 59 sudden quarrel, whether the injuries were caused voluntarily, the injuries caused on the victim were on vital or non-vital organs, whether the plan was premediated to inflict the injury are also relevant factors. These are few of the ingredients among others and has to be looked into according to the facts and circumstances of the case. The relevant para are reproduced hereasunder:
xxxxxxxxxxxxx This position has been elaborately stated by this Court in Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381). Above being the position in law, when the facts are applied it becomes clear that all the accused person are liable in terms of Section 149 IPC. Looking at the nature of the injuries, weapons used and the manner of assaults, there was no reason to apply Section 326 IPC in case of accused-respondent No.1 alone. The trial Court had rightly convicted the accused persons under Section 302 IPC. The gruesome nature of the attack is amply demonstrated by the injuries noticed on the body of the deceased. One other aspect which was emphasized was that when prosecution version accepted PW-1 to be intended victim, Section 149 IPC cannot be invoked for deceased's murder. This plea has no legal foundation, when logic of Section 301 IPC is applied. Same reads as follows:
"Section 301- Culpable homicide by causing death of person other than person whose death was intended- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends or knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."
The provision is founded on a doctrine called by Hale and Foster, a transfer of malice. Others describe it as a transmigration of motive. Coke calls it coupling the event with the intention and the end with the cause. If the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out.
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 11 of 59 Though Section 149 IPC may not in a given case apply to a case covered by Section 301, it would depend upon the factual background involved. No hard and fast rule of universal application can be invoked. In the facts of present case, as adumbrated supra, the essential ingredients of Section 149 have been amply established. Though initially the malice was focused on PW-1, the fact that all the accused chased and assaulted the deceased is a case of transfer of malice. The same was again pursued by coming back and attacking PW-1. So far as the assaults on PW-1 is concerned, the nature of the assaults and the injuries found clearly bring in application of Section 307 IPC. The trial Court was therefore justified in convicting accused- respondent No.1 under Section 307 IPC.
The essential ingredients required to be proved in the case of an offence under Section 307 are:-
(i) That the death of a human being was attempted;
(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;
(iii That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as;
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b)such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
In offence under Section 307 all the ingredients of offence of murder are present except the death of the victim. For the application of Section 307 it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained alteration of conviction notwithstanding no modification of sentence need be made. It is true that when two views are possible and if one view has been adopted by the Court to either acquit the accused or to apply a different provision of law, interference should not be made but when the judgment suffers from SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 12 of 59 legal infirmities and application of legal position to the factual scenario is unsustainable, interference is not only necessary but also highly desirable. The appeal deserves to be allowed. In the ultimate, the judgment of the High Court is set aside and that of the trial Court is restored. The respondents shall surrender to custody and serve out the balance sentence. xxxxxxxxxxxxxxxx 8.2 Hence the first ingredient the prosecution has to be prove is death of a human being was attempted. Where there is no intention to cause bodily injuries sufficient to cause death to the victim or had no knowledge that injury inflicted by him would be fatal. Then in such case even when injury was caused voluntarily by a sharp weapon the accused could not be held guilty under Section 307 IPC but under Section 326 IPC. It was so laid down in case titled Pritam Chauhan vs. State (Govt. of NCT of Delhi) in Crl. Appeal 648/2001 decided on 24.10.2013 from Hon'ble High Court of Delhi at para no. 6 and 7 which are reproduced hereasunder:
6. Ocular and medical evidence are not at variance. PW-1 (Dr.Sudha Kanojia), CMO, Holy Family Hospital examined Sunder on 18.05.1999 vide MLC (Ex.PW-1/A) and noticed multiple lacerated wounds on the body. PW-2 (Dr.Naresh Chander Gaur), Orthopedics Surgeon found two wounds at the back of left fore-arm 9 X 5 c.m.
over the middle 1/3rd and 6 X 4 c.m. distal 1/3rd left fore arm with deep extensive damage to most of the muscles and the back of left forearm. Another wound 4 X 1 c.m. on the palm of right hand was found. The patient underwent operation on 19.05.1999 and remained in hospital for treatment till 24.05.1999. In 313 statement, the appellant did not give plausible explanation to the incriminating circumstances proved against him. Non-recovery of crime weapon is not fatal as injuries were caused with 'sharp weapon'. The Trial Court after considering the rival contentions of the parties concluded that the appellant was the author of the injuries. The findings are based upon proper appreciation of evidence and need no interference. The SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 13 of 59 prosecution, however, could not establish commission of offence under Section 307 IPC. The injuries caused to the victim were not on vital organs. The crime weapon was an ordinary vegetable knife. There was no pre-plan or meditation to inflict injuries to the victim. Prior to the occurrence, the victim and the appellant familiar with each other were together playing cricket without any confrontation whatsoever. Only on their way back, a child aged 8 or 10 years unexpectedly came from the opposite direction and the appellant slapped him. The complainant's interference to rescue the child annoyed him and he in a sudden fit of rage inflicted injuries to the victim after fetching a knife from his house. To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. It is sufficient to justify a conviction under Section 307 IPC if there is present an intent coupled with some overt act in execution thereof. The nature of weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and size of the injuries, the parts of the body of the victim selected for causing injuries and the severity of the blow or blows are vital factors that can be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempt of murder. The Section may apply even if no hurt is caused. The causing of hurt is merely an aggravating circumstance. 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 Section 307 IPC.
7. Apparently, the appellant had no intention to cause bodily injuries sufficient to cause death to the victim or had the knowledge that injuries inflicted by him could be fatal. The prosecution was nevertheless able to establish that injuries were caused voluntarily by the appellant with a sharp weapon and thus he can be held guilty for committing offence under Section 326 IPC. The conviction is altered from Section 307 to Section 326 IPC.
9.1 The FSL report is Ex.P1 and the metallic knife is Ex.1 had rusty stains. Blood could not be detected on Ex.1. PW-12 has deposed in cross-examination dated 03.08.2016 at page 2 that the blood had fallen on his shirt and he was bleeding profusely. It is deposed that PW-12 was SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 14 of 59 not hit by the pointed side of the knife blows. With such heavy blows when blood was coming profusely then there must be blood on the knife and also at the spot. However no blood was detected in the report of FSL on knife Ex.1 and only rusty stains were found which means that there is doubt if it is the same knife or not. The Ex.2 is foul smelling dark brown liquid which is blood sample of the victim. The report of serological analysis has reported that the blood sample had putrified and no opinion can be formed on it. Hence there is absence of any opinion regarding blood taken from victim PW-12. Further, Ex.3 is one shirt having brown strains and the blood was detected that of human of 'B' group. It is deposed by PW-12 in cross-examination dated 03.08.2016 at page 4 that IO had not asked him to hand over his blood stained shirt in the hospital though IO had instructed him to preserve the shirt. However the above deposition of PW-12 is contradictory to his statement recorded under Section 161 Cr. PC dated 07.11.2007 vide Ex.PW2/DA wherein it is recorded that the doctor had not taken the shirt from PW-12 and PW-12 had washed the said blood stained shirt on the same day. Hence it is difficult to believe that when the shirt was already washed then FSL could have given opinion on it about the grouping of blood and whether washing of shirt thereby has not rendered the evidence in doubt. Further, the putrified sample of blood of PW-12 has failed to disclose the nature of group of blood of PW-12 in absence of which it cannot be said that the blood group detected on the shirt of PW-12 by the FSL is of the same blood group of PW-12. Though in statement Ex.PW2/DA it is claimed by SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 15 of 59 Sh. Deepak Sharma that the doctor has not taken his blood stained shirt whereas in MLC Ex.PW1/DA=Ex.PW14/A it is recorded that the patient went away LAMA and therefore the nature of injuries cannot be known. Hence the claim of PW-12 is contradictory to the medical record. Ld. Counsel for the accused has submitted that there is reason for the injured PW-12 to leave the hospital LAMA as he was so much drunk that he could not stand on his own legs. Hence the prosecution has failed to prove blood of PW-12 either on the shirt or on the knife.
9.2 It is noted that in MLC Ex.PW1/DA at point E the doctor has recorded the place of accident as Pulbangash and PW-1 in cross- examination dated 07.03.2011 at page 4 (recorded at 2:00 PM) has admitted that the accident is recorded at place Pulbangash, Delhi in the MLC Ex.PW1/DA. However PW-1 has deposed that Raman rang phone at 100 number from Pulbangash. The witness has said again it was Pul Mithai. The prosecution has to dispell the doubt which is created in the MLC Ex.PW1/DA regarding the place of incident and the same is not dispelled by the prosecution by any evidence and therefore two contradictory statements cannot stand together which therefore creates doubt in the case of prosecution if the incident had at all occurred at Pul Mithai and not at the place of Pulbangash. Now it has to be seen that whether there is possibility of improvement in the statement of witnesses of the prosecution. Since the statement are in contradiction to the evidence available on the record and now it has to be seen that whether SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 16 of 59 the statement were given at the earliest possible time. The PW-1 in his cross-examination dated 07.03.2011 at 2:00 PM at page 4 has deposed that police came at the hospital around 10:45 PM and his statement was recorded between 2:00-3:00 AM on 24.11.2007. The police left the hospital between 3:30 AM-4:00 PM on 24.11.2007 and another statement under Section 161 Cr. PC of PW-1 was recorded by the same police officer at 10:30 AM on 24.11.2007. The FIR is lodged at the police station at 1:20 AM on 24.11.2007. Ld. Counsel for the accused has submitted that the FIR is ante-dated. It is noted that the complaint Ex.PW1/A as per deposition of PW-1 as discussed above was recorded between 2:00-3:00 AM and therefore there is no reason with the police to record the statement of PW-1 earlier in time. On the face of it the complainant has given statement Ex.PW1/A later in time whereas the FIR is already recorded on the basis of Ex.PW1/A. Hence the FIR is found recorded ante-dated and there is doubt in the prior preparation of complaint Ex.PW1/A than recording of FIR Ex.PW5/A. It shows that investigation was not conducted by the IO in fair manner and therefore such major discrepancy has occurred. Further, when the MLC Ex.PW1/DA records the place of incident at Pulbangash then it was incumbent on the prosecution to show the call at 100 number from Pulbangash which is not proved on record. PW-4 in cross-examination dated 26.02.2015 at page 2 has deposed as correct that at the time of calling the police he had uttered the word Pulbangash while the incident has occurred at Pul Mithai. Further, Ex.PW10/A is DD No. 29A dated SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 17 of 59 23.11.2007 at 11:20 PM that a knife was hit at Pul Mithai. Whereas Mark A=Ex.PW3/A which is record from police control room mentions time of receipt of information as 10:35 PM on 23.11.2007 in contradiction to time recorded in DD No. 29A/Ex.PW10/A. 9.3 PW-1 in cross-examination dated 07.09.2011 at page 4 has deposed that police had reached at the hospital at 10:45 PM. The MLC Ex.PW1/DA records the time of arrival of the injured at the hospital is 10:45 PM. Hence police had already reached at the hospital before reaching the injured at the hospital. PW-1 in cross-examination dated 07.03.2011 at page 2 has deposed that Deepak Sharma could not get consciousness at the time of filling portion at point A in Ex.PW1/DA. The point C in the same exhibit MLC records smelling of alcohol from Sh. Deepak Sharma. It is deposed by PW-1 that Sh. Deepak Sharma/PW- 12 was not in a position to state and he was not standing properly and he was taking continuous support of PW-1. It is deposed that PW-1 has stated only his name and PW-1 has further deposed contradictorily to the document of prosecution Ex.PW1/A that the doctor has discharged Deepak Sharma on his own whereas in MLC it is recorded that the patient has went LAMA. There was no reason with the doctor to record that the patient has went LAMA if the patient was discharged. The nature of injuries on PW-12 are not proved on record. The PW-12 in cross- examination dated 03.08.2016 at page 2 has deposed that he was conscious at the time when he was in hospital whereas the doctor records SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 18 of 59 at 12:30 AM on 24.11.2007 that the patient was unfit for statement. PW- 12 has deposed contradictorily at page 5 that he did not take discharge on his own from the hospital against the medical advice of the doctors. It is deposed by PW-12 at page 3 of cross-examination dated 03.08.2016 that he was discharged from the hospital in the early morning hours. It is admitted by PW-4 in cross-examination dated 26.02.2015 as correct that Sh. Deepak Sharma/PW-12 has left the hospital against the advice of the doctor. The reason for leaving the hospital against the advice of the doctor was that they had no money to pay the medical bill of doctor at St. Stephen Hospital. Hence this deposition is against the deposition of PW-12 that PW-12 did not went LAMA. It is admitted by PW-4 in same deposition as correct that in MLC of PW-12 Sh. Deepak Sharma it is recorded that alcohol smell positive. It is deposed by PW-4 that he cannot tell if the shirt was given by Sh. Deepak Sharma was the same shirt which was worn by him at the time of incident. PW-6 has deposed that the patient had went LAMA and the alcohol smell was present. The patient was drowsy and since the patient has went LAMA the nature of injuries cannot be known. It is claimed by ld. Counsel for the accused that PW-12 himself was so much drunk that he could not stand on his own legs who was smelling positive for alcohol and due to such over intoxication he was not fit for giving statement to the doctor when PW- 12 had reached at the hospital. Since the patient/PW-12 had went LAMA and in view of recording of smelling of alcohol in PW-12 and further it has come on record that PW-12 was not able to stand on his legs SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 19 of 59 comfortably and therefore doubt has arisen that whether PW-12 was fit enough to observe and narrate the facts correctly when the incident has allegedly occurred. Had he not went LAMA then blood sample could have been examined including presence of alcohol in his blood. Even the statement of PW-12 was recorded in his chamber, as per deposition of PW-10 in cross-examination dated 12.04.2018. It is deposed by PW-12 in his examination in chief dated 23.02.2015 that his statement was recorded by ASI Krishan on 24.11.2007 outside of house of Raman Aggarwal which is so recorded at page 2 which is deposed contradictorily to the deposition of PW-10 dated 12.04.2018 in cross- examination at page 1 where PW-10 has admitted as correct that he has recorded statement of Sh. Deepak Sharma/PW-12 in his chamber at Tis Hazari Court, Delhi which is Ex.PW2/DA. In such view of the matter there is doubt in the case of prosecution and it is possible that due to intoxication PW-12 was not able to stand properly when he was produced in hospital and due to such intoxication he was not able to given his statement to the police at the earliest possible time. Due to such intoxication it is difficult to believe that PW-12 was in a position to observe the incident properly. There is contradiction in the case of prosecution not only regarding the place at which the incident has occurred but also there is doubt that which of the accused has hit PW-12 with knife. When it could not be ascertained that which of the accused had hit PW-12 with knife then on the basis of conjectures any of the accused could not be punished. The case of the prosecution is rendered SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 20 of 59 with inherent improbabilities and multiple doubts and contradictions. The relevant citation in this regard is reproduced hereasunder:
In case titled Virendra Vs. State of Madhya Pradesh in [Criminal Appeal No(s). 466/2018] dated July 11, 2022 from Hon'ble Supreme Court Of India has laid down as under:
REASONING OF THE TRIAL COURT AND THE HIGH COURT
7. Both the courts shifted the burden on the defence. The evidence rendered by the prosecution witnesses was rejected, either as that of indifferent witnesses or as irrelevant evidence. We may note that these are all prosecution witnesses who were not treated as hostile.
No attempt whatsoever was made either to treat them as hostile or to re-examine them except that of PW10. Not even a suggestion was put to them on the presence of PW15. In such a scenario, the statement made by the prosecution witnesses in favour of the accused would certainly inure to his benefit. Our view is fortified by the decision of this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272:
"9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to heard (sic declare) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8's testimony can be sidelined."
It is reiterated in Javed Masood v. State of Rajasthan, (2010) 3 SCC 538: "20. In the present case the prosecution never declared PWs 6, 18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence." Reliance was made on the recovery from the appellant. The fact remains that SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 21 of 59 there was sufficient evidence to conclude that only one shot was fired which could be seen even from the evidence of PW15. While assessing the evidence produced by the defence, courts discarded them without appreciating the fact that it has to be seen only on the degree of probability.
10. The MLC of PW-12 is Ex.PW1/DA=Ex.PW14/A dated 23.11.2007 at 10:49 PM. The nature of injuries were recorded as simple. However PW-12 is recorded as LAMA (left against medical advice). It is also recorded at point D where LAMA is recorded that because the patient had left LAMA therefore nature of injury cannot be known. Hence the PW-12 has no reason to go LAMA and even otherwise the burden to prove the nature of injury is on the prosecution. PW-6/Dr. Vijay Kataria has deposed at point C in Ex.PW1/DA on examination of the patient that alcohol smell was present in the patient. It is deposed that the patient response to command was drowsy. PW-14/Dr. Amit Mittal has admitted as correct in cross-examination that there is no mentioning of depth of both the injury in the MLC of the patient which is Ex.PW1/DA. Only tetanus injection was provided to the patient. PW-14 has explained at point Z1 in MLC Ex.PW14/A=Ex.PW1/DA that the sharp weapon diagnosed by him was on the basis of alleged history mentioned at point Z1. Hence the nature of weapon as sharp was found by PW-14 not on the basis of examination of the patient/PW-12 but only on the basis of statement made by PW-12 before the doctor. There is no scientific evidence from the doctor about sharpness of injury on PW-12. It is deposed by PW-14 that he has not seen the knife. He could not SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 22 of 59 comment on the nature of injury as he had not seen the knife. It is admitted as correct by PW-14 in cross-examination dated 05.02.2019 that PW-12 was found smelling positive of alcohol. He did not collect any blood sample to calculate the percentage of alcohol in the blood. It is deposed that the patient was referred to plastic surgery department and medicine department. However patient is recorded as LAMA in MLC. Hence knife was not seen by the doctor nor the injuries were examined to give the opinion on the nature of injury received by PW-12. Hence it cannot be said that the injuries allegedly received by the accused were so received from the knife Ex.PW7/H=Ex.P1.
11. The complaint is Ex.PW1/A. PW-1 has deposed at page 1 of his examination in chief dated 11.02.2011 that all the three boys fled away from the spot. However in complaint Ex.PW1/A it is recorded from point X to X that when all the four accused could be produced before him/Sh. V.C. Gautam then he can identify all the four accused. Hence PW-1 has contradicted himself in reference to number of accused threatened them at the spot on 23.11.2007. PW-1 in examination in chief dated 02.02.2011 at page 2 has identified the accused Anna as accused Narender. Hence there is incorrect identification of the accused by the complainant/PW-2. PW-12 in his examination in chief dated 23.09.2015 at first and second page has deposed that initially there were two boys at the spot one of which who was tall boy went inside the gali and brought the third boy. Hence with such deposition it has come out that only three SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 23 of 59 boys were there at the spot contrary to the complaint Ex.PW1/A where it is recorded that the complainant could identify four persons. PW-1 in examination in chief dated 11.02.2011 at page 1 has deposed that the first boy involved the victim in conversation and the other boy went inside the gali to bring the third boy whereas PW-12 has deposed contradictorily in that the tall boy/first boy had went inside the gali and came out of the gali with the third boy. Hence the prosecution witness have deposed in contradiction to each other that which of the boy had went inside the gali and brought the third boy in view of the deposition of PW-12 that the short height boy had entangled them in conversation and not the tall boy/first boy whereas as per deposition of PW-1 the first boy had went inside the gali to bring the third boy. Another contradiction is that as per deposition of PW-12/the injured the tall boy/first boy has knife in his hand and therefore the injuries by knife were caused by the first boy/tall boy whereas as per deposition of PW-1 the second boy/short boy had went inside the gali and that second/short boy had given the knife blow to PW-12. Hence there is contradiction between PW-1 and PW-12 that whether the first boy/tall boy or the second boy/short height boy had caused injuries upon PW-12. Further, PW-12 in his statement Ex.PW12/DA at second page has stated that three person ran away from the spot contrary to the recording of four person in complaint Ex.PW1/A.
12. The accused Vimal @ Manav was arrested on 25.11.2007 and SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 24 of 59 he was not arrested at the spot. The accused was arrested at Pul Mithai by PW-7, PW-9 and PW-11. The time of arrest was about 11:00AM. PW- 7, PW-9 and PW-11 had prior information through a secret informer that accused person were siting at Pul Mithai despite which they did not join a public witness. The said information was also not reduced into writing nor instructions from senior officer were taken. The disclosure statement was recorded at the police station and not at the spot. PW-9 had deposed that no departure entry in regard to constitution of raiding team and arresting the accused on the basis of secret information was recorded. PW-9 do not remember if IO Insp. Kuldeep Singh had recorded his statement or not. It is deposed by PW-9 in cross examination dated 05.02.2019 that ASI Vikram Singh did not make any arrival entry at police station in his presence. It is deposed by PW-11 that he did not make any departure entry however he had made arrival entry in Roznamcha. The manner in which the accused persons are arrested and no departure entry was made and no senior officer was intimated about such constitution of team and arrest of accused which therefore creates doubt the manner in which the accused persons were arrested from Pul Mithai. Ld. Counsel for the accused has referred to Rule 49 of Chapter XXII of Punjab Police Rule, 1934 in terms of which departure entry was required to be mandatorily made by the police person which was not made in this case. Since departure entry was not made in the manner required by law which therefore creates doubt in the case of prosecution if PW-7, PW-9 and PW-11 had any secret information at all to arrest the SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 25 of 59 three accused at Pul Mithai. No public witness was joined in such arrest of the accused when they were available at broad daylight at a busy public place then it makes the case of the prosecution more doubtful.
13. Further, the name of any of the accused was not disclosed by the complainant in FIR Ex.PW5/A whereas in statement Ex.PW12/A of the injured Sh. Deepak Sharma/PW-12 recorded on 24.11.2007 mentions that the short boy has exorted the tall boy that Manav hit the advocate on the neck with knife. This shows that name of one of the accused was known to PW-12 on 24.11.2007 whereas the FIR Ex.PW5/A was also recorded on 24.11.2007 in which name of accused Vimal @ Manav was not disclosed. The name of one of the accused was not disclosed by the complainant to the police though this name was known to them before hand which shows that there were improvement made by the prosecution witness from time to time in their statement.
14. Hence it is held that the prosecution has failed to prove that which of the accused had attempted death of the human being. The nature of injury are not proved on record and it is settled law that merely because injury was caused on the face or head may not mean that there was intention of causing death or such bodily injury with intention to cause death. Hence it is held that prosecution has failed to prove ingredients laid down under Section 307 IPC. The case of the prosecution is rendered with inherent improbabilities and contradictions SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 26 of 59 which has caused doubt. The benefit of doubt so caused must be extended to the accused. Accordingly, accused is held entitled to acquittal under Section 307 IPC.
15. The relevant Section 27 of the Arms Act 1959 is reproduced hereasunder for ready reference.
27. Punishment for using arms, etc.--(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with imprisonment for life, or death and shall also be liable to fine.
16. The evidence under Section 307 IPC is also relevant for decision of possession of arms/pistol under Section 27 of Arms Act. It was held in 1986 Crl. LR (Rajasthan) 35 that where the prosecution fails to prove beyond doubt that accused used fire arm for the commission of offence then conviction under Section 27 of Arms Act would not be justified. It was held in (1982) 2 Chand LR (Crl.) 548 (555) Delhi that where the prosecution has merely alleged that the possession of dagger and knife by the accused was for use for unlawful purpose without any independent witness than conviction under Section SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 27 of 59 27 could not be sustained. However in view of inconsistency pointed out above in the evidence of prosecution it has become incumbent on the part of prosecution to join public witness in absence of which the case of the prosecution has become doubtful. Other than this when the accused is acquitted under Section 307 IPC which is main offence and Section 27 of Arms Act is subjugate offence to the main offence in this case then conviction would not be maintained of the accused under Section 27 of Arms Act which is dependent offence on the same set of facts under Section 307 IPC. It was held in (1983) 23 Delhi Law Times 367 that where it is clearly established that the witnesses are not telling the truth then the involvement of accused with arms with the alleged intention becomes extremely doubtful on which accused would not be punished under Section 27 of Arms Act and accused would be entitled to benefit of doubt. Hence in absence of consistent evidence of the prosecution witness it cannot be said that the prosecution has successfully proved the possession of knife with the accused. The prosecution witness by their evidence has rendered themselves lack of creditworthy.
17. It was further held in (1997) 70 DLT 595 that where the evidence on record show that the knife was not used by the accused for the purpose of commission of alleged offence of robbery and it was only when the accused was chased and over powered then a knife was allegedly recovered from him then it would not attract either Section 397 SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 28 of 59 IPC or Section 27 of Arms Act. (All number of citations are taken from the AIR Manual Civil & Criminal 6th Edition Vol. 2 by Manohar & Chitaley)
18. It is submitted by the learned Counsel for the accused that Section 27 of the Arms Act is not made out and in this respect Sub- Section (1) of the Section is referred. It is submitted that arms or ammunition in question must have been used by the accused in contravention of Section 5 of the Arms Act, 1959. It is submitted that under Sub-Section (1) Clause (a) under Section 5 of Arms Act, 1959 no person shall use without licence fire arms or any other arms or any ammunition of such class or description as may be prescribed unless he holds a valid licence.
19. The relevant Section 5 of the Arms Act, 1959 is reproduced hereasunder for ready reference:
"5. Licence for manufacture, sale, etc., of arms and ammunition.- [(1)] No person shall-
(a) 2[use, manufacture] sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
3[* * * * *] 4[(2) Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 29 of 59 another person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition:
Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be so sold or transferred by any person unless--
(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and
(b) a period of not less than forty-five days has expired after the giving of such information.]"
20. Exemption is granted to a person who does not have licence when he possesses it lawfully or when it is not prohibited by the Act. It is submitted by learned Counsel for the accused that what is prohibited under Section 5 of the Arms Act, 1959 must have been proved by the prosecution by referring to relevant notification in this regard. The prosecution has not proved relevant notification and therefore prosecution cannot say that the knife allegedly recovered from the possession of the accused is a prohibited knife. Learned Counsel for the accused has referred to Ex.PW7/H = P1 which is sketch of knife. It is submitted that this is not a knife against which any notification is issued by the competent Government. It is submitted that Ex.PW7/H is vegetable cutting knife which comes in the category of domestic knife. For further elaboration learned Counsel for the accused has referred to SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 30 of 59 Schedule I (V) of the Arms Rules, 2016 where at column No.(2) has defined arms other than fire arms. It has specifically excluded such knife which are designed for domestic, agricultural, scientific or industrial purpose. Such other weapons which are life preservers and such other arms which the Central Government may by notification under Section 4 of the Arms Act, 1959 excludes.
21. Section 4 of the Arms Act, 1959 is reproduced hereasunder for ready reference:
"4. Licence for acquisition and possession of arms of specified description in certain cases.- If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification, and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder."
22. It is submitted by learned Counsel for the accused that the Central Government in any area when it found necessary and expedient in public interest can regulate by notification in the official Gazette the possession of arms of specified description in certain cases. It is submitted that even when the notification is not produced by prosecution in evidence however the same is available on record at page No.85 of the SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 31 of 59 case file. The notification is dated 17.02.1979 bearing No.F.13/203/78- Home(G). The notification is seen which was issued by the Administrator keeping in view the circumstances prevailing in the Union Territory of Delhi expedient in public interest. The regulation of spring actuated knives, grinder knives, buttondar knives or other knives which open and close with any other mechanical device with a blade of any size should be regulated in public place. Holding knives with sharp edge blade of 7.62cm or more in length and 1.72cm or more in breath should be regulated in public place. The notification is issued under Section 4 of the Arms Act, 1959 in the name of the Administrator of the Union Territory of Delhi and signed by Under Secretary Home (General) Sh. Jai Shree Raghuraman Delhi Administration Delhi.
23. After perusal of the above notification it is seen that the knife Ex.PW7/H is not a knife which open or close with any other mechanical device nor it is spring actuated knives, grinder knives, buttondar knives or other knives which open and close with any other mechanical device with a blade of any size. Hence it cannot be said that the knife seized from the accused is prohibited vide a separate notification by the Government of NCT of Delhi. The notification is not proved by the prosecution on record therefore it cannot be said that there is any such prohibition against the accused for possession of knife Ex.PW7/H.
24. Learned counsel for the accused has submitted that if Section SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 32 of 59 4 & Section 5 of the Arms Act are not applicable then Section 27 of the Arms Act is also not applicable in the facts of the present case. It is submitted that the accused was not caught at the spot and his possession is not proved at the spot.
25. It is submitted that the complete Act and Schedule of the Act is not applicable until there is notification in respect of such articles of offence. The notification defines the substantive offence which has to be read with Arms Act, 1959. In absence of such notification the prohibition will come into operation. Further the knife allegedly recovered from the accused Ex.PW7/H is neither prohibited in the notification nor it is prohibited in the Act as the nature of knife is vegetable cutting knife and it is not a mechanically operated knife.
26.1 Learned Counsel for the accused has submitted that the recovery of knife is also doubtful. PW-7, PW-9 and PW-11 all are police witness to the recovery of knife from the accused. PW-7 at page 2 of his examination dated 07.10.2013 has deposed that the knife was recovered from under the bridge which was recovered after disclosure statement made by the accused. PW-9 in his examination dated 05.02.2019 at page 2 has deposed that the recovery of knife was made away about distance of 500-600 mtrs. from police station. It is noted that PW-9 has not deposed anything about the place from which the knife was recovered and PW-7 and PW-11 does not talk about the distance from police station SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 33 of 59 from where the knife was recovered and hence the deposition of above witness in this respect is incoherent. PW-11 in his cross-examination dated 28.08.2015 at page 2 has deposed that the knife was recovered from the railway track on the disclosure of accused. Hence the deposition of all the three police witnesses as to recovery of knife is incoherent to each other as to place of recovery of such knife. Hence the recovery of knife Ex.PW7/H from the accused has become doubtful benefit of which must inure to the accused. In the disclosure Ex.PW7/E of the accused Manav it is allegedly disclosed that the accused Manav had hidden the knife under the railway track beneath stones and under the Pul Mithai. Hence as per the claim of prosecution the knife was recovered from the same place after a period of two days. It is already held above that this kind of knife is not prohibited under Section 25 of Arms Act. Now it has to be seen that whether this recovery is admissible under Section 27 of Indian Evidence Act, 1872. It is for the prosecution to prove that the object recovered has the nexus with the crime. The burden lies on the prosecution to establish a close link between the discovery of material object and its use in the commission of the offence. Since no blood was found on the knife and such kind of knife are easily available in the market place and therefore the prosecution has failed to establish any nexus of the recovered knife with the crime allegedly committed by the accused. The alleged recovery was made from an open public place which is accessible to anyone and no special knowledge to such place can be attributed to the accused. Hence doubt has arisen in SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 34 of 59 such recovery of knife from the accused. The relevant law in this regard was laid down in case titled Bijender @ Mandar vs. State of Haryana in Criminal Appeal No. 2438 of 2010 decided on 08.11.2021 a from Hon'ble Supreme Court of India and that relevant paras No. 16, 17, 19 and 20 are reproduced herein under:
16. We have implored ourselves with abounding pronouncements of this Court on this point. It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material.
However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt. We may hasten to add that circumstances such as
(i) the period of interval between the malfeasance and the disclosure;
(ii) commonality of the recovered object and its availability in the market;
(iii) nature of the object and its relevance to the crime;
(iv) ease of transferability of the object;
(v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (See: Tulsiram Kanu vs. The State2; Pancho vs. State of Haryana3; State of Rajasthan vs. Talevar & Anr 4 and Bharama Parasram Kudhachkar vs. State of Karnataka5)
17. Incontrovertibly, where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. Its nearly three centuries old cardinal principle of criminal jurisprudence that "it is better that ten guilty persons escape, than that one innocent suffer". The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent".
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 35 of 59
19. Unmindful of these age old parameters, we find that the Prosecution in the present case has miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity. In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he be chanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. We say so for the following reasons:
Firstly, the High Court and the Trial Court failed to take into consideration that the testimony of ASI Rajinder Kumar (PW-14) exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu (PW¬8) who was admittedly a companion of the Complainant.
Secondly, the Complainant (PW¬4) as well as Raldu (PW¬8), have unambiguously refuted that neither the passbook, nor the red cloth was recovered from the possession of the Appellant, as claimed in his disclosure statement.
Thirdly, while the Complainant (PW¬4) negated his signatures on the recovery memo (EX. PD/2), on the other hand, Raldu (PW¬8) also neither enumerated the recovery memo (Ex. PD/2) in the catalogue of exhibited documents, nor did that he affirm to having his endorsement.
Fourthly, the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the 'red cloth' with 'Kamla' embossed on it, as has been acceded by the Investigating Officer, Rajinder Kumar (PW¬14), can also be easily available in market.
Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant.SC No. 28314/2016
State vs. Vimal @ Manav FIR No. 269/2007 Page 36 of 59 Sixthly and finally, there is no other evidence on record which even remotely points towards the iniquity of the Appellant.
20. It appears to us that the Trial Court and the High Court have erroneously drawn adverse inference against the Appellant, in spite of the Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of the Appellant. As far as the view of the Trial Court and the High Court qua the alleged threat is concerned, we find it hard pressed to give credence to such allegations in the absence of any compelling evidence to substantiate the same. Although, the Prosecution has attempted to place reliance on the affidavit presented by the Complainant during the T.I.P. offered by the co accused Manjeet, we find that the said affidavit does not name the Appellant herein and pertains solely to Manjeet.
26.2 Hence it is held that prosecution has failed to prove that the knife Ex.PW7/H allegedly recovered from the accused is prohibited under Arms Act, 1959 as prosecution has failed to prove relevant notification from competent authority in this regard. Further, the recovery itself of said knife which is seen in the nature of vegetable cutting knife is doubtful. The prosecution has failed to prove use of said knife by the accused person while allegedly committing the offence under Section 307 IPC and therefore it cannot be said with certainity that which of the accused had used the said knife. The finding arrived under Section 307 IPC above are held equally applicable in the findings under Section 27 of Arms Act, 1959 and for the sake of brevity the same are not repeated herein. Hence it is held that prosecution has failed to prove if the accused had committed any offence under Section 27 of Arms Act, 1959 and therefore consequently accused is acquitted of the said offence.
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 37 of 59
27. To prove the charged offence it has to be seen first whether offence under Section 34 IPC is made out or not. The necessary ingredients under Section 34 IPC are laid down in the citation titled as Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083. It was held in case titled Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083 wherein it was held that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established as follows:
(i) Common intention
(ii) Participation of accused in commission of any offence If common intention is proved but an overt act is attributed to the individual accused then Section 34 will be attracted as essentially it involves vicarious liability but a participation of accused in the crime is proved and common intention is absent then Section 34 cannot be invoked. It was held in case titled Ramashish Yadav Vs. State of Bihar 1999(8) SCC 555 that Section 34 requires a pre-arrange plan and it pre-supposes prior concert therefore, there must be prior meeting of mind. The prior meeting of mind can be developed at the spur of moment but there must be pre-arrangement or pre-mediated concert. It was held in case titled Ram Bilas Singh v. State of Bihar AIR 1989 SC 1593 that in order to convict a person as vicariously liable under Section 34 or Section 149 of IPC then it is not necessary to prove that each and everyone of them had indulged in overt acts.
The common intention can be formed in the course of occurrence which was so held in case titled Hariom Vs. State of U.P. (1993) 1 Crimes 254 (SC). It was held in case titled Santosh Desai vs. State of Goa (1997) 2 Crimes 666 (Bom) that when an offence is sought to be proved only on circumstantial evidence then the allegation of common intention under Section 34 normally cannot be established in absence of meeting of minds, the overt act of the accused, by their conduct, by using the weapons in their utterance of words.
28. It was further held by Hon'ble High Court of Delhi in case titled Neeraj Alias Nagar vs State (NCT of Delhi) on 14 November, SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 38 of 59 2019 in Crl. A. 88/2019 has held as under:
Common Intention
53. Learned counsel for the accused persons argued that the prosecution failed to prove that the accused persons shared a common intention to commit the alleged offence and hence, they can't be held guilty for the offence punishable under Section 34 IPC.
54. Before delving into the merits of the case, we deem it appropriate to discuss the relevant provisions which are involved in the present case, Section 34 of the IPC reads as under:
"34. 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."
55. To bring an offence within the ambit of Section 34 IPC, the following factors are necessary to be present there:
(1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person.
(2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.
56. Therefore, in order to constitute an offence under Section 34 IPC, the accused is to be fastened with liability on the strength of Section 34 IPC, that they should have done some act which has nexus with the offence. Such an act need not be very substantial. It is enough that the act is only for guarding the scene for facilitating the crime. The distinction between a "common intention" and a "similar intention" which is real and substantial is also not to be lost sight of. The common intention implies a prearranged plan or a plan developed on the spur of the moment. Such common intention which is developed on the spur of the moment is different from the similar intention actuated by a number of persons at the same time.
57. In other words, the act need not necessarily be overt, even if it is only a covert act, it is enough, provided such a covert act is proved to SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 39 of 59 have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act.
58. The Apex Court in the case of Rambilas Singh v. State of Bihar reported in AIR 1989 SC 1593 the Hon'ble Supreme Court held as under:
"It is true that in order to convict persons vicariously under S. 34 or S. 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of he members of the unlawful assembly."
(emphasis supplied)
59. The aforesaid judgment was followed by the Apex Court in the case of Suresh & anr v. State of UP reported in 2001 3 SCC 673. The germane portion of the judgment is extracted below:
"37. However, in view of the importance of the matter, insofar as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co- accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention.
38. Section 34 of the Indian Penal Code recognizes the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 40 of 59 each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act". The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
60. Keeping in view the facts of the present case and applying the principles laid down by the Hon'ble Apex Court, it is established that common intention necessitates prior concert which requires a prearranged plan, but such preconcert may develop on the spur of the moment and will make the accused persons responsible for the ultimate criminal act done by several persons. Further, on the basis of evidence borne out from the previous part of the judgment, it is substantiated that all the accused persons in furtherance of their common intention were actively involved in the commission of the alleged offence.
29. It was held in case titled Man Singh & Anr vs State of Madhya Pradesh in Cr. A No.312 of 2011 dated 27.04.2022 from Hon'ble High Court of Madhya Pradesh at relevant para that Section 34 IPC does not create a distinct offence. It was laid down that Section 34 SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 41 of 59 does not create a distinct offence but it is a principle of constructive liability. The relevant para are reproduced as hereunder:
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent.'' (23) So far as next contention of the counsel for the appellants that no conviction for instigation or exhortation can be recorded against the accused appellant Man Singh alleged to have exhorted the actual assailant is concerned, in the case at hand, there is direct and positive evidence that at the instigation of appellant accused Man Singh, appellant- accused Narendra fired at the deceased.
Therefore, in the light of unanimous and categorical statements of prosecution witnesses, the contention of counsel for the appellants is not acceptable. The evidence of witnesses relating to exhortation is clear, cogent and reliable. In view whereof, it cannot be said that appellant accused Man Singh was not sharing common intention with appellant accused Narendra Singh in commission of murder of deceased in question. In this regard, a reliance can be placed on the decision of Rajasthan High Court in the matter of Bhoma Ram Vs. State of Rajasthan 1987 WLN UC 128 wherein, it has been held as under:-
''10. Accused Laxmi Chand and Ram Chandra were convicted with the aid of Sections 34 and 109 IPC. Section 34 IPC does not create a distinct offence. It only lays down the principle of joint criminal liability on the ground that where two or more persons intentionally commit an offence jointly, it is just the same thing as if each of them had done it individually, The existence of common intention is largely inferential. Surrounding circumstances, conduct of the culprits preceding the commission of the offence during its commission and subsequent to commission furnish the materials from which inference is to be drawn as to whether the offence was committed in furtherance of the common intention of the culprits. The words spoken by the culprits, the instigation, exhortation and encouragement given by them before and during the commission of the crime are the usual factors from which the inference is to be drawn whether the crime was the out-come of the common intention of the all and the common intention of one was shared by the others. For the applicability of Section 34 IPC, the intention to commit the SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 42 of 59 offence must be common to all the culprits and it must be shared by each of them. In Jai Narain v. State of Bihar, it was observed by their Lordships in para 10 of the judgment that where an offence is committed on the instigation of one of the culprits, that culprit giving the instigation can be safely convicted for the main offence with the aid of Section 34, IPC.
11 Section 109, IPC defines abetment.
Among other things, it speaks that a person abets the doing of a thing, who instigates any person to do that thing. Instigation in law, thus, indicates some active suggestion such as command, order exhortation etc. to the commission of the offence. It is a direct incitement by one to the other to commit the crime. Exhortation by one culprit to the other to commit the offence, constitutes abetment.
12. In the instant case, the evidence of the eye witnesses establishes that accused Laxmi Chand and Ram Chandra said to accused Bhoma Ram, "Here is Milki's servant Madan. Shoot him." The words "shoot him" are clearly indicative that they wanted the deceased to be killed and finished for ever. The pistol was fired by accused Bhoma Ram only after the aforesaid direction, order command or exhortation was given to him by accused Laxmi Chand and Ram Chandra.
13. It was argued by Mr. Doongarsingh that the evidence as regard to the verbal exhortation should not be readily believed. Oral evidence relating to exhortation is of weak type and the Court should be reluctant to accept that evidence. In support of his contention, Mr. Doongar Singh placed reliance on Jainual Haque v. State of Bihar . It was observed by their Lordships that the evidence of exhortation is by nature weak and conviction for abetment should not be recorded without clear, cogent and reliable evidence in this respect.'' (24) We shall also go back into the history to understand Section 34 of IPC as it stood at the inception and as it exists now. Generally speaking, Section 34 IPC provides an 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.
(25) In the recent decision of Jasdeep Singh alias Jassu vs. State of Punjab decided on 7th January, 2022 in Criminal Appeal No.1584 of 2021 (Arising Out of SLP (Crl) No. 1816 of 2019) the Hon'ble Apex SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 43 of 59 Court has observed as under in detail:-
''19. On a comparison, one could decipher that the phrase "in furtherance of the common intention" was added into the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view:
"It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill- treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals."
20. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 44 of 59 would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word 'omission', meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.
21. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.
22.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34IPC does not get attracted.
23.It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.
24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 45 of 59
25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.
26.The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
27.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.
29.The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgments:
Suresh v State of U.P. ((2001) 3 SCC 673):
"24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 46 of 59 an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co- accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.
xxx xxx xxx
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 47 of 59 which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:
"22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused -- though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:
"24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."
Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):
"...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34includes a series of acts and, further, "act" includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co- operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait". By S. 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 48 of 59 doing of separate acts, similar or diverse, by several 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, for "that act" and "the act" in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."
Mehbub Shah v. Emperor (AIR 1945 PC 148):
"....Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all." Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan..."
Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:
"7...It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly..."
Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 49 of 59 "15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur."
Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:
"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture...."
Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]:
"8. ...As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-SC No. 28314/2016
State vs. Vimal @ Manav FIR No. 269/2007 Page 50 of 59 concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]:
"12. ...As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention, then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.......... "
Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]:
"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34.
While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 51 of 59 IPC must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22. Section 34 also deals with constructive criminal liability. It provides that where 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 was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab 1991 (1) SCC 519).
23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case..."
Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]:
"87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 52 of 59 Pradesh, [(2010) 7 SCC 759], it is clear that Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase "common intention" means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case."
30. The aforesaid principle has also been dealt with in extenso by the Apex Court in Virendra Singh V. State of Madhya Prades ((2010) 8 SCC 407) through the following paragraphs:
"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre- concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465.
16. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 53 of 59 difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record.
17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply. xxx xxx xxx
36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 30 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories:
(1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike.
37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with the circumstances when a person is vicariously responsible for the acts of others.
38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 54 of 59
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
41. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 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 Russell that any act of preparation for the commission of felony is done in furtherance of the act.
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 55 of 59 which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34."
(26) The well-established principle of law underlying provisions of Section 34 of IPC emerges from decision of Justice Vivian Bose in Pandurang, Tukia and Bhillia vs. The State of Hyderabad 1955 SCR (1) 1083 wherein it has been held as under:-
"33. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre- arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor [72 IA 148 at 153 and 154]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case:
Barendra Kumar Ghosh v. King-Emperor [72 IA 148 at 153 and 154] and Mahbub Shah v. King-Emperor [52 IA 40 at 49] . As Their Lordships say in the latter case, "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". 34. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose." (emphasis supplied) (27) Similarly, in the matter of Virendra Singh v. State of MP (2010) 8 SCC407 the Hon'ble Apex Court has SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 56 of 59 explained the ambit of words "in furtherance of common intention of all" and has observed as under:-
''15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v. State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ 465] ."
(28) Followings are fundamental principles underlying Section 34 of IPC:-
''(i) Section 34 does not create a distinct offence, but is a principle of constructive liability;
(ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done;
(iii) There may not be a long interval between the act and the pre-
meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and
(iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime. (29) The above fundamental principles have been adopted and applied by Hon'ble Apex Court in the matter of Chhota Ahirwar v. State of MP (2020) 4 SCC 126 as under:-
SC No. 28314/2016State vs. Vimal @ Manav FIR No. 269/2007 Page 57 of 59 "26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. [See Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 :
(2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 :
(1924-25) 52 IA 40 :
AIR 1925 PC 1], "they also serve who stand and wait".
27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other."
(30) In the recent judgment of Sandeep v. State of Haryana 2021 SCC Online SC 642, a two-judge Bench of the Hon'ble Apex Court has held that an exhortation given by an accused immediately before a co-accused fired a shot killing the deceased would prove his involvement in the crime beyond reasonable doubt. Accordingly, this Court upheld the conviction of accused under Section 302 read with Section 34 of IPC.
30. The finding arrived under Section 307 IPC above are held equally applicable in the findings under Section 34 IPC and for the sake of brevity the same are not repeated herein. It is already held above that the prosecution has failed to prove offence under Section 307 IPC. Section 307 IPC is the predicate offence and Section 34 IPC is the dependent offence/subjugate offence. The subjugate offence is dependent on the main offence. In the facts and circumstances of the case when the prosecution has failed to prove that which of the accused has caused injury on PW-12, when the place where the offence has caused is not SC No. 28314/2016 State vs. Vimal @ Manav FIR No. 269/2007 Page 58 of 59 proved, the recovery against the accused is doubtful, the nature of injuries are not proved, the arrest of accused person later in time at the spot claimed by the prosecution is doubtful, the recovery of knife from the accused is doubtful then it cannot be said that the accused person had shared such a common intention to incur joint liability/vicarious liability. Section 34 is not a substantive offence. Hence sharing of common intention and pre-arranged plan is not proved on record by the prosecution. The number of accused available at the spot is also doubtful. In such view of the matter it is held that prosecution has failed to prove necessary ingredients under Section 34 IPC and therefore accused Vimal @ Manav stands acquitted of the above offence. The earlier personal bond of accused stands cancelled and surety bond stands discharged. The documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. PC, accused has furnished his bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court JOGINDER Digitally signed by
JOGINDER
on 28.03.2024. PRAKASH PRAKASH NAHAR
Date: 2024.03.28
NAHAR 15:47:32 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 28314/2016
State vs. Vimal @ Manav
FIR No. 269/2007
Page 59 of 59