Delhi District Court
State vs . Nitin, on 3 March, 2012
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 89/11.
Unique Case ID No.02405R0207412010.
State Vs. Nitin,
S/o George Walter,
R/o H. No.4, Shira Khand,
Vishwakarma Nagar,
Jhilmil Colony,
Shahdara,
Delhi.
Date of Institution : 08.8.2010.
FIR No.89 dated 09.5.2010.
U/s. 302/34 IPC.
P.S. Kapashera.
Date of reserving judgment/Order : 27.2.2012.
Date of pronouncement : 03.3.2012.
JUDGMENT
1. The accused has been facing trial for having committed the offence of murder punishable u/s.302 IPC. It is alleged that he alongwith his associates Raju and Bharti (who could not be arrested and have already been declared proclaimed offenders) killed one Babloo on 08.5.10 in the tenanted room of the accused. As per the prosecution case, the deceased had love affair with co-accused Bharti, who later on got married to another co-accused Raju, whereas deceased Babloo got married to one Manju, who has been examined as PW3 in this case. It is alleged that the deceased continued his relationship with Bharti even after their respective marriages, which became an eyesore for Raju and he with the help of Bharti and accused Nitin planned and SC No.89/11. Page 1 of 30 committed the murder of deceased Babloo.
2. It is the case of prosecution that on 08.5.10 at about 3.42 p.m. an information was received in P.S. Kapashera to the effect that a person had got injured in a quarrel in Gali No.2 near Telephone Exchange, Samalkha. The information was recorded as DD No.18A, a copy of which was handed over to HC Ranveer, who alongwith HC Lakhmi Chand proceeded to the spot of incident, where he came to know that the injured has been removed to Safdarjung Hospital. HC Ranveer deputed HC Lakhmi Chand at the spot and himself reached Safdarjung Hospital where he found the injured Babloo in a serious condition. He informed the SHO about the same and accordingly Inspector T.R. Punia alongwith Const. Ashish Pandey reached Safdarjung Hospital and found injured Babloo admitted vide MLC No. C/82762. The doctor decleared him not fit for statement. No eye witness was found in the hospital. Thereafter, Inspector T.R. Punia reached the spot of incident i.e. Room No.23 in the house of Mahender, Gali No.2, Samalkha Extension and found blood scattered on the floor. One blood stained small gas cylinder, blanket, shawl, dupatta and small pillow (all blood stained) were found on the floor of the room. The Inspector met an eye witness namely Suraj Mukhi and recorded her statement. At the same time, Inspector T.R. Punia received copy of DD No.26A through Const. Satpal to the effect that injured Babloo has expired. The Inspector called Crime Team and himself alongwith Const. Ashish Pandey proceeded to Safdarjung Hospital. The dead body of deceased Babloo was sent to Mortuary for preservation. He again returned to the spot of incident, got the spot inspected and photographed by the Crime Team. He SC No.89/11. Page 2 of 30 prepared the rukka and got the FIR registered. After registration of the case, the investigation was handed over to Inspector T.R. Punia himself.
3. It is further the case of the prosecution that during investigation, Inspector T.R. Punia prepared site plan of the spot of incident and lifted various exhibits from the spot of incident. He also recorded statement of various witnesses u/s.161 Cr.PC. After identification of the dead body by the relatives of the deceased, its postmortem was got conducted and after the postmortem the dead body was handed over to the relatives of the deceased. Accused Nitin came to be arrested. He made disclosure statement admitting his involvement in the incident and also got recovered his clothes which he was wearing at the time of incident.
4. After the completion of the investigation, the Charge Sheet was filed before the concerned Ilaqa Magistrate.
5. On committal of the case to the court of Sessions, following Charge was framed against the accused on 17.9.10 :
"That on 08.5.2010 at about 3.00 p.m. in or about room no.23, plot of Mahender, Smalkha Extension, Delhi, within the jurisdiction of Police Station Kapashera, you alongwith other two co-accused persons, in furtherance of your common intention, murdered one Bablu, son of Kirpa Ram, you thereby committed an offence punishable under section 302 IPC read with section 34 IPC and within my cognizance."
6. The accused pleaded not guilty to the aforesaid SC No.89/11. Page 3 of 30 Charge and claimed trial. Therefore, the prosecution was called upon to lead evidence to prove the Charge against the accused.
7. Prosecution has examined following 31 witnesses to bring home the guilt of the accused :
PW1 is the Kirpa Ram, the father of the deceased, who had identified the body of the deceased in the hospital mortuary vide memo Ex.PW1/A. He also testified that the deceased had intimate relations with Bharti.
PW2 is Sh. Puran Chand, uncle of the deceased, who had identified the body of the deceased in the hospital mortuary vide memo Ex.PW2/A. PW3 is Smt. Manju Devi, the wife of the deceased. She has turned hostile and did not support the prosecution case.
PW4 is Ms. Roma, the sister of Bharti. She testified about the intimacy between the deceased and Bharti. She is also Nanad (sister-in-law) of Manju (PW3) and deposed that there were strained relations between the deceased and his wife Manju on account of the relationship of deceased with Bharti.
PW5 is Dilip Singh, the husband of PW4 Roma. He also testified about the intimate relationship between the deceased and Bharti and the strained relations SC No.89/11. Page 4 of 30 between the deceased and his wife Manju.
PW6 is Manoj, who resided in the neighbourhood of the deceased. He had seen accused Nitin and Raju running from the room of accused Nitin soon after the incident. He even chased them but could not catch hold of them.
PW7 is Ashok, in whose house the accused and his wife used to previously resided as a tenant. He testified that Raju and Bharti used to visit the accused.
PW8 is Smt. Surajmukhi, the material witness of the prosecution. Her deposition would be dealt in detail in the later part of the judgment.
PW9 is Const. Satvir Yadav, the Duty Officer at Safdarjung Hospital at the relevant time.
PW10 is Lady Constable Poonam, who was posted at police control room on 08.5.10 and was on duty at channel no.123 from 2 p.m. to 8 p.m. He had received telephonic call about the incident at about 3.30 p.m. and sent the Magistrate to the concerned Net and to P.S. Kapashera. She proved the PCR form as Ex.PW10/A. PW11 is Smt. Chandmani, the mother of PW8 Surajmukhi.SC No.89/11. Page 5 of 30
PW12 is Rahul Kumar, the owner of mobile phone shop at Gali No.2, Samalkha Extension, New Delhi, who had made call at telephone no.100 about the incident.
PW13 is Sh. Rajender, the landlord of the house, in which the incident took place. He testified that accused had taken on rent the room no.25 of his house about 20 to 25 days prior to the incident and had been staying there alongwith his wife Sushila. He also testified that PW8 Chandermukhi was residing in room no.26 on rent of the same house and she had given assurance regarding identity of the accused Nitin as the wife of the accused was her sister. He had reached the spot of incident after hearing a noise and saw injured Babloo in the room. He tried to contact telephone no.100 but it was busy and Rahul (PW12) told him that he has already informed police control room.
PW14 is ASI Attar Singh, Incharge Crime Team, South West District.
PW15 is Const. Arun, the photographer in the Crime Team.
PW16 is ASI Beg Raj, who was found on duty on PCR Zebra 42 on 05.8.10. He had received the call from police control room about the incident at about 3.35 SC No.89/11. Page 6 of 30 p.m. He had reached the spot and removed the injured to Safdarjung Hospital.
PW17 is Constable Hardeep, who had prepared the scaled site plan of the spot of incident and has proved it as Ex.PW17/A. PW18 is HC Lakhmi Chand, who had initially reached the spot on receipt of DD No.18A and also participated in further investigation of the case.
PW19 is Const. Gyani Ram, who had handed over DD No.23A to HC Ranvir (PW21).
PW20 is Constable Satya Pal, who had taken the copy of DD No.26A from Duty Officer at the police station and handed over the same to Inspector T.R. Punia at the spot of incident.
PW21 is HC Ranvir Singh, who had reached the spot of incident alongwith PW18 on receipt of DD No.18A and also participated in further investigation of the case.
PW22 is Const. Raj Kumar, who had delivered the copy of FIR to the Ilaqa Magistrate and senior police officers.
PW23 was the Duty Officer at P.S. Kapashera on 09.5.10 from 12 midnight to 8 a.m. and he has SC No.89/11. Page 7 of 30 registered the FIR in the present case. He proved the copy of the same as Ex.PW23/A and his endorsement on the rukka as Ex.PW23/B. PW24 HC Chaman Singh, who was associated in the investigation of this case alongwith IO Inspector T.R. Punia.
PW25 is Const. Josh Kumar, who also was associated in the investigation of this case alongwith IO Inspector T.R. Punia.
PW26 is HC Krishan Kumar, who was also the Duty Officer in P.S. Kapashera on 08.5.10 and had recorded DD No.23A regarding death of the deceased.
PW27 is HC Virender Singh, who was posted as MHC(M) in P.S. Kapashera in December, 2010. He proved the entries in Register No.19 vide which the case property was deposited in the Malkhana.
PW28 is ASI Brahmo Devi, who was Duty Officer at P.S. Vasant Kunj on 08.5.10 from 8 a.m. to 4 p.m. and had recorded DD No.18A. He proved the photocopy of the same as Ex.PW28/A. PW29 is Dr. Kamran Faisal, who proved the MLC of the deceased as Ex.PW29/A. SC No.89/11. Page 8 of 30 PW30 is IO Inspector T.R. Punia.
PW31 is Dr. Sarvesh Tandon, who had conducted the postmortem of the dead body of the deceased.
8. The accused Nitin was examined u/s.313 Cr.PC on 27.1.12, in which he denied his involvement in the incident and claimed innocence. He stated that he was not present in the room on the day of incident and had gone out to ply his TSR. According to him, he returned to his room at about 4.45 p.m. and came to know about the incident. He, however, admitted that Raju and Bharti were on visiting terms with him and added that that he did not know whether they had come to his room alongwith deceased Babloo on the date of incident. The accused did not lead any evidence in defence.
9. I have heard Ld. APP for State and Ld. Counsel for the accused and have perused the oral as well as documentary evidence led by the prosecution.
10. It was submitted by Ld. APP that from the testimonies of PW4 and PW5 it stand established that the deceased had a love affair with Bharti and he continued this relation even after he got married to PW3 and Bharti had got married to Raju. According to him, it is also proved on record that the relations between the deceased and his wife Manju (PW3) used to remain strained on account of continued intimate relations between the deceased and Bharti. He further argued that presence of the accused at the spot of incident soon after the incident is evident from the testimonies SC No.89/11. Page 9 of 30 of PW8 and PW6. He argued that there is sufficient material on record demonstrating complicity of the accused in the murder of deceased Babloo and therefore, he is liable to be convicted u/s. 302 IPC.
11. On the other hand, Ld. Counsel for the accused, after referring to the testimonies of all the material witnesses submitted that the prosecution has failed to establish any role of the accused in murder of deceased Babloo. He urged this court to acquit this accused.
12. As noted herein-above, the postmortem of the dead body of the deceased was conducted by PW31, who has proved the postmortem report as Ex.PW31/A. As per postmortem report and the testimony of PW31, following external injuries were found on the body of the deceased during the postmortem :
(1) Stitched wound above right eye 2 cm long, 2 black stitches, margin lacerated, vertical. (2) Stitched wound over nasal bridge, 2 cm long, 2 black stitches, lacerated margins, underlying nasal bone fracture.
(3) Stitched wound over upper lip from inner side, over right side with 2 black stitches, 2.2 cm long, lacerated margins.
(4) Lacerated wound over left side of head, 3 cm long, 9 cm above left ear, margins lacerated. (5) Lacerated wound over the back of head on occipital protuberance, lacerated margins, 3.5 X 0.5 cm size.SC No.89/11. Page 10 of 30
(6) Abrasions small, 1 cm length each, red in colour, around left elbow over back, 1 to 2 cm separate from each other.
13. Following internal injuries were also found on the body of the deceased during the postmortem :
(1) Head - scalp tissues were contuse and lacerated below injuries no.4 & 5. Left side temporal, parietal, occipital bones were fractured. Left temporal, parietal and both occipital lobes were contused and lacerated with subarachnoid and parenchymal haemerrohages.
(2) Neck and Thorax were NAD.
(3) Abdomen - stomach had about 200 ml blood mixed with alcohol. Smell of alcohol was present. Rectum was empty, bladder was full.
(4) Face - it was swollen and oedematous. Fracture nasal bone and both upper jaws (maxillae). Front teeth were fractured irregularly with broken jaws.
Fracture dislocation of the lower jaw was also present.
14. From the nature and extent of injuries sustained by the deceased as mentioned herein-above, it can be said that he was badly beaten by more than one person and was also hit by a sold object on the head. PW31 has opined that the cause of death was cranio cerebral damage due to blunt force impact diverted upon the head by the other party and external injury nos.4 & 5 were singularly as well as collectively fatal, caused by heavy hard SC No.89/11. Page 11 of 30 blunt object and sufficient to cause death in the ordinary course of nature. It has also been opined that all injuries were ante mortem in nature.
15. The weapon of offence i.e. mini gas cylinder Ex.P1 was also shown to PW31 by the IO for subsequent opinion. PW31 has proved his subsequent opinion as Ex.PW31/B in which he opined that the injuries on the head, face and other parts of the body of the deceased could be possible with the said mini gas cylinder or any other similar weapon or object. It is pertinent to mention here that PW31 was not cross examined at all on behalf of the accused.
16. From the testimony of PW31, it stands established that the death of the deceased Babloo was homicidal and was caused by hitting him on the head with a mini gas cylinder Ex.P1 or any other like heavy, hard and blunt object. As per MLC of the deceased Ex.PW29/A he had been brought to DDU Hospital by Const. Satvir on 08.5.10 at 5.03 p.m. with injuries on his head and face. It has also come on record that the deceased expired in the hospital at about 7.10 p.m.
17. Now the material issue which arises for determination is whether the accused caused the death of the deceased or played any role in the death of the deceased alongwith any other person.
18. The prosecution case is that the deceased was in love with accused Bharti. For some unknown reasons, their love relationship could not blossom into marriage. The deceased got SC No.89/11. Page 12 of 30 marriage to PW3 Manju whereas Bharti got married to accused Raju. Further case of the prosecution is that the deceased continued his love relations with Bharti even after their marriage with respective spouses, which were not to the liking of accused Raju and hence accused Raju, Bharti and accused Nitin conspired to eliminate the deceased. In pursuance to this conspiracy, they brought him to the room of accused Nitin on the date of incident and killed him.
19. The father of the deceased, appearing as PW1 has deposed that Bharti had intimate relations with his deceased son Babloo, who used to drive a car. Bharti used to travel in the car of the deceased and also ran away with him. There is no cross examination of this witness on this aspect.
20. PW4 Ms. Roma is the sister of accused Bharti and also the sister-in-law (Bhabhi) of Manju (PW3). According to her examination in chief, Bharti is her youngest sister. Deceased Babloo was on visiting term with them and during the visits, he had developed intimacy with Bharti. The deceased used to work as a driver and Bharti used to go with him in his vehicle for roaming about. She further deposed that her parents used to reside at JJ Camp, Bawana, whereas deceased used to reside at Narela. On account of little distance between the two places the deceased used to frequently visit her parental house. She also deposed that when her Nanad Manju (PW3) came to know about the relationship of her husband deceased Babloo with Bharti, she complained to her saying that her sister Bharti is going to ruin her married life. On this, she alongwith her husband went to parental SC No.89/11. Page 13 of 30 house of Bharti and asked her to cease her relationship with the deceased, but Bharti denied having such relationship with the deceased. She also deposed that after sometime Manju came to their house saying that she has been beaten by the deceased due to his relations with Bharti. On the intervention of one Hanif, the god brother of Manju, compromise took place between the deceased and Manju and the deceased took Manju back to his house at Narela. She further states that after about six months, she came to know that Bharti had married Raju. Thereafter, they were not on talking terms with Bharti as she had married to Raju, who belongs to a different community. She also stated that the police made inquiries from her and also recorded her statement.
21. I do not find any material cross examination of this witness. Even though she admitted the suggestion that she has deposed at the instance of police, but has added that she has stated whatever was known to her. She also stated that her statement was recorded by the police at Safdarjung Hospital. I do not find anything untrustworthy in the testimony of this witness. She seems to be a natural and truthful witness.
22. The husband of PW4 has been examined by the prosecution as PW5. His examination in chief is similar to that of PW4 and need not be repeated for the sake of brevity. Curiously, he has not been cross examined at all on behalf of the accused. Therefore, it can be said that his testimony compliments and corroborates the version given by PW4 so far as the love relationship between the deceased and Bharti is concerned and the marriage of deceased with Manju and that of Bharti with Raju.
SC No.89/11. Page 14 of 3023. PW13 is the landlord of the house in one of the rooms of which, the deceased had been attacked and injured i.e. room no.25. According to his testimony, room no.25 was taken on rent by accused Nitin and his wife Sushila about 20 - 25 days prior to the incident. One Chandramukhi, who was residing in room no.26 had given assurance regarding identity of the accused as the wife of the accused was younger sister of Chandramukhi. He further deposed that on 08.5.10 at about 2.25 p.m., he reached the aforesaid house. He heard a noise and saw injured in the room. He tried to call at telephone no.100, but the line was busy. At the same time, one Rahul (PW12) came to that place and told him that he has already informed police control room at telephone no.100. He further deposed that PCR officials reached the spot and removed the injured to the hospital in a PCR Van. There is nothing worth mention in his cross examination. It is thus established that the room no.25 in which the deceased was found in injured condition after the incident, was taken on rent by the accused from this witness about 20 - 25 days prior to the incident.
24. PW7 is the owner of House No.54, Village Khajuri Khas, Gokul Puri, Delhi. According to him, the accused and his wife Sushila were residing in his house as tenant for 3 - 4 years on the second floor, before they shifted to the house of PW13. He testified that Bharti and Raju used to visit the accused and during the stay of Bharti and Raju with the accused, some quarrel had taken place and he got the room vacated from the accused. However, in the cross examination, he admitted that he had never met Bharti and Raju and it is the other tenants of the house, who SC No.89/11. Page 15 of 30 had told him that they used to come to see the accused.
25. Smt. Surajmukhi (PW8) seems to be a material witness for the prosecution. She could not tell the exact month, in which the incident took place. However, she stated that on 6th day of the month in the year 2010, she had come to the house of her mother Chandmani (PW11) at Samalkha where her uncle Manoj (PW6) was also staying alongwith his family. She further deposed that on 8th day of the month, perhaps it was second or third month of the year 2010 at about 2 p.m. when she was washing dishes in front of their room, she heard the noise of 'Dhum - Dhum' from the room opposite their room, in which room her aunt Sushila alongwith her sons Nagender and Kalu were staying. She saw one lady by the name Bharti standing on the door, whom she asked what the matter was. She again heard same noise and Bharti told her that some jokes are being cracked between Jija and Saali. She again heard the same noise and went to see what was happening but was stopped by Bharti saying that it was not of her concern. Thereafter, Bharti tried to entangle her in talks and she went back to clean the utensils. She again heard some noise of 'Maar Dala - Bachao' (I have been killed - save me). She again went there and forcibly lifted the curtain to see what was going on inside. As soon as she did so Bharti punched her with nails. When she saw inside the room, a person was hitting the other with a cylinder but she could not see distinctly the face of that person. She informed her uncle Manoj and he came and made inquiries about the matter. Thereafter, one Raju having blood soaked hands came out and said nothing happened. Raju was wiping out the blood from his hands with handkerchief and thereafter, locked the room. They SC No.89/11. Page 16 of 30 opened the room and found the injured crying for help and meanwhile, Raju had run away. The injured was badly hurt and was bleeding. He was pleading for help. There were blood stains on the walls of the room. Her uncle tried to chase the offender, but they ran away. Police was called, which reached the spot after 3 to 4 hours and took the injured to the hospital. She proved her statement recorded by the police as Ex.PW8/A. According to her, police had seized gas cylinder, one pillow, blanket, hat, dupatta and other articles and also the earth control and a portion of the floor having blood stains and other articles from the room in her presence vide seizure memo Ex.PW8/B. She identified all these articles when shown to her during her examination in court. She was declared hostile by the Ld. APP. In the cross examination conducted by Ld. APP, she admitted that the police recorded her statement Ex.PW8/A verbatim according to what she had told the police. She admitted that she had told police that she had seen Raju, Bharti and Babloo coming to the house of her Mausi on 08.5.10 at about 11 a.m. in a long car and went inside the room. She also admitted that she had stated to the police that her Mausa i.e. accused Nitin was present in the room at that time and her Maasi Sushila was eating watermelon in their house at that time. She also stated that she had stated to the police that when she saw inside the room from the window, she had seen Raju was beating deceased Babloo with a small gas cylinder, but immediately added that she had not seen so. She also admitted that she has stated to the police that Raju ran away from the spot after bolting the room from outside while saying that nothing has happened and accused Nitin also followed Raju. She identified accused Nitin in court. She also stated that she had forgotten SC No.89/11. Page 17 of 30 these details on the last date of hearing and she was able to recollect the same now.
26. In the cross examination, she stated that the distance between their room and the room of Sushila was about 3 to 4 feet. She knew accused Nitin two days prior to the incident. She reiterated that she came to her mother's house three days prior to the incident, from the house of her father at Okhla as her parents are residing separately for the last so many years. According to her, her mother is staying with Manoj (PW6) and their relation is of Devar and Bhabhi. She admitted that she could not see even after removing the curtain of the window as to who was beating the deceased as there was darkness in the room when the incident took place. She stated that accused Nitin used to ply an auto and would leave in the morning and return in the evening. She, however, denied the suggestion that on the day of occurrence also, he followed the same routine and voluntarily stated that he came back in the day time. She admitted that at the time of occurrence, she did not see accused Nitin at the spot but added that she saw him following other accused persons after the incident.
27. At this stage, it is also necessary to refer to the deposition of Manoj i.e. PW6. In his examination in chief, he stated that he used to reside in room no.24 of the house of Mahender at Samalkha as a tenant alongwith his sister-in-law (Bhabhi) namely Chandmani (PW11). He did not remember the exact month, in which the incident taken place. He stated that on 8th of that month in the year 2010, he was present in the tenanted room as SC No.89/11. Page 18 of 30 he was not feeling well. During the noon time when he was sleeping, his niece Surajmukhi (PW8) called him and told him to see what was happening. He got up and saw that Raju and accused Nitin (whom he correctly identified in the court) were running outside the premises. He chased them but could not catch hold of them and they ran away. When he came back, the public persons gathered at the spot and told him to bring an auto. He went to fetch an auto but could not get any. When he returned, he found that the police officials had lifted the deceased. He was declared hostile by Ld. APP. In the cross examination conducted by Ld. APP, he admitted that he chased accused Nitin and Raju as PW8 had told him that they were running after killing a man. He was confronted with his statement u/s.161 Cr.PC Mark- PW6/A wherein he had stated much more than he testified in the court and denied having said so to the police. He, however, admitted that accused Nitin was residing in front of their room at the time of incident and the incident took place in the room of accused Nitin on 08.5.10. He also admitted that Raju and Bharti were on visiting terms with accused Nitin. He also admitted that he chased the accused persons while raising alarm 'Pakro - Pakro' after coming to know that they were running after committing murder of the deceased.
28. In the cross examination conducted on behalf of accused, PW6 stated that the distance between his room and the place of incident is about 6 to 7 feet. He reiterated that he was not well on that day and in fact, he had not been going for work for the last two days prior to the date of incident. He further reiterated that he had seen Raju and Bharti visiting the room of SC No.89/11. Page 19 of 30 Sushila where the incident had taken place two days prior to the date of incident and also on the date of incident.
29. It would also be useful here to refer to the deposition of Smt. Chandmani, who has been examined as PW11. She states that she is a housewife and used to reside in room no.24 on the plot of Satinder Sharma in Gali No.2, Samalkha. Accused Nitin (whom she correctly identified) used to reside with his wife Sushila, her younger sister in the same house. She further deposed that on the date of incident (she was not able to state the exact month being illiterate and stated that it was 6th day and the month was of 'Jaishta' in the year 2010) accused Nitin alongwith Raju and Bharti and one more person came to his room. At that time, she was sleeping in her room and her daughter Surajmukhi was washing utensils outside the door of her room. Surajmukhi tried to wake her up telling her that she heard some noise from the room of Nitin. They tried to see what was happening but all the persons had already left. Thereafter, they entered inside the room and one person namely Babloo was lying in injured condition, who was pleading to be saved.
30. Evidently the testimonies of PW6, PW8 and PW11 are corroborative of and in sync with each other. Nothing contained therein is inconsistent with the prosecution case. They have stood their ground in the cross examination also and the accused has not been able to elicit anything contradictory in their cross examination. Going by the nature of their deposition, they seem to be truthful and trustworthy witnesses. The presence of PW8 near outside her mother's room, her hearing the sounds from SC No.89/11. Page 20 of 30 room of accused Nitin, her calling PW6 & PW11 seeing accused Nitin and Raju fleeing from the spot and his chasing them hgas remained uncontroverted.
31. This it stands established by the prosecution that :
(i) deceased Bablu had intimate relations with accused Bharti even after their marriage with different persons;
(ii) Bharti and Raju were friendly with accused Nitin and were on visiting terms with him;
(iii)Accused Nitin had taken on rent room no.25 in the house of PW13 and was staying there alongwith his family.
(iv)PW6 and PW11 were staying in room no.24 of the same house which was just opposite room no.25;
(v) PW8, the daughter of PW11 had come to stay with her mother about two days before the date of incident;\
(vi)On the date of incident accused Nitin, Raju and Bharti alongwith the deceased had come to aforesaid room of the accused Nitin; and
(vii)At about 2 p.m., when PW8 was washing utensils outside the room, she saw sounds of 'Dhum - Dhum' from the room of accused whereas Bharti was standing guard at the door and Bharti even tried to prevent her from going inside the room.
(viii)Accused Nitin and Raju were seen running away from the room by PW6 soon after the incident and he also chased them for some distance but could not catch them.SC No.89/11. Page 21 of 30
32. It may be noted here that the accused Nitin also has admitted in his examination u/s.313 Cr.PC that he was staying as tenant alongwith his family in the room opposite the room no.24 which was under occupation of PW6 and that Bharti and Raju were on visiting terms with him. He, however, has stated that he was not present in his room at the time of incident and also did not know whether Bharti and Raju had come to room on that day.
33. According to PW6 and PW8, accused Nitin was present in his room on the date of incident i.e. 08.5.10. PW8 had stated in her statement u/s.161 Cr.PC and also reiterated in her testimony before the court that on 08.5.10 at about 11 a.m., she saw Raju, Bharti and Bablu (deceased) coming to the house of her Mausi (wife of accused Nitin) in a long car and went inside the room. She also deposed that at that time, accused Nitin was present in his room whereas his wife Sushila was eating watermelon in their room. It is the consistent statement of both PW6 and PW8 that they saw accused Nitin leaving the place alongwith Raju after the incident and soon thereafter they saw the deceased in a seriously injured condition in the room of accused Nitin.
34. It is unfathomable why would these two witnesses lie. Nothing has come on record to suggest that they had any kind of enmity with the accused. In fact, it has come on record that wife of accused is the sister of the mother of PW8 and their relations inter-se were extremely cordial. So there is nothing to disbelieve their deposition regarding presence of accused Nitin in his room at the time of incident. It is worthwhile to note here that the Hyndai SC No.89/11. Page 22 of 30 Accent Car, in which Bharti, Raju and deceased Bablu had reached the spot was seized by police vide seizure memo Ex.PW18/A as the same was abandoned by them while running away.
35. It may also be noted here that the accused has not disputed that the murder of deceased Bablu took place in his tenanted room. The presence of accused Nitin in and around his tenanted room, at the time when the deceased was attacked and fatally injured has been proved in the testimonies of witnesses discussed herein-above. It was submitted by Ld. Counsel for the accused that at the most only the presence of accused Nitin at the spot of incident has been proved by the prosecution and that by itself does not demonstrates his complicity in the fatal attack upon the deceased. He submitted that none of the witnesses have stated that they saw accused Nitin beating or hitting the deceased. According to him, the accused cannot be convicted merely because he was found present at the spot of incident at the time of incident and was seen running away from the same soon after the incident.
36. I have anxiously considered the submission of Ld. Counsel for the accused. I do not find any merit in the submissions of Ld. Counsel. The circumstances of the case which have been unfolded by the witnesses make it evident that the accused Nitin was aware about the intention with which the deceased was brought to his room on the day of incident and he also was involved in the attack upon the accused. I am also of the view that the role played by the accused Nitin in the incident indicates that he shared a common intention of the other assailants, which SC No.89/11. Page 23 of 30 was to kill the deceased and therefore, he can be safely held guilty of murder by applying the principle contained in section 34 of IPC.
37. Generally, only that person incurs criminal liability for commission of offence, who actually committed the offence and he alone can be held guilty for the commission of offence. The rule embodied u/s.34 of Indian Penal Code, with the aid of which any person can be held vicariously liable for the criminal action of others, is an exception to the aforesaid general principle. Once it is shown that any person shared the common intention to commit an offence alongwith some other and in furtherance thereto he played his assigned role, he shall be liable for that offence, even if he may not have actually committed the offence.
38. "Common intention" is a state of mind and it is very difficult to produce direct evidence to prove such evidence. It can only be inferred from the conduct of the accused during and after the incident as well as other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and overt act with which the attack was made, from the nature of injury caused by one or some of them. The contributory act of the persons, who are not responsible for the injury can further be inferred from their subsequent conduct after the conduct. In this regard, even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit the offence, of which he should be convicted SC No.89/11. Page 24 of 30 (via Noor Mohd. Yusuf Momin, AIR 1971 SC 855).
39. The Supreme Court in Pandurang Tukia and Bhillia vs. State of Hyderabad, 1955 (1) SCR 1083, has observed that ;
"But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, 'the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis'.
40. The scope of ambit of section 34 of IPC has been succinctly explained by the three judge bench of the Supreme Court in Suresh and anr. Vs. State of U.P., AIR 2001 SC 1344 as under :
"We heard arguments at length on the ambit of Section 34 IPC. We have to consider whether the accused who is sought to be convicted with the aid of that section, should have done some act, even assuming that the said accused also shared the common intention with the other accused.
Section 34 reads thus -
"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 SC No.89/11. Page 25 of 30 him alone."
15. xxxxxxxxx
16. In this context a reference to Sections 35, 37 and 38 of IPC, in juxtaposition with Section 34, is of advantage. Those four provisions can be said to belong to one cognate group wherein different positions when more than one person participating in the commission of one criminal act are adumbrated. Section 35 says that when an act is done by several persons each of such persons who joins in the act with mens rea is liable for the act' in the same manner as if the act were done by him alone with that knowledge or intention'. The section differs from Section 34 only regarding one postulate. In the place of common intention of all such persons (in furtherance of which the criminal act is done), as is required in Section 34, it is enough that each participant who joins others in doing the criminal act, has the required mens rea.
17. xxxxxxxxx
18. Hence, under Section 34 one criminal act, composed of more than one act, can be committed by more than one persons and if such commission is in furtherance of the common intention of all of them, each would be liable for the criminal act so committed.
19. xxxxxxxxx
20. xxxxxxxxx
21. Even the concept of presence of the co-accused at the scene is not a necessary requirement to attract Section 34, e.g. the co-accused can remain a little away and supply weapons to the participating accused either by throwing or by catapulting them so that the participating accused can inflict injuries on the targeted person. Another illustration, with advancement of electronic equipment can be etched like this: One of such persons in furtherance of common intention, overseeing the actions from a SC No.89/11. Page 26 of 30 distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. We do not find any reason why Section 34 cannot apply in the case of those two persons indicated in the illustrations.
22. Thus to attract Section 34 IPC, two postulates are indispensable - (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.
23. 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 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 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 SC No.89/11. Page 27 of 30 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 doe snot do any act at the scene, cannot be convicted with the aid of Section 34, IPC."
41. Hence the position which emerges from the law laid down by the Supreme Court in aforementioned judgment is that an accused can be convicted with the aid of section 34 IPC even if no overt act is attributed to him and merely on the basis of his presence at the scene of crime while some crime is being committed by his associates provided that the prosecution is able to show that the accused present at the scene of crime and sought to be convicted under section 34 of IPC shared common intention of other accused, who has actually participated in the crime.
42. Coming back to the instant case, it has been proved in the testimony of PW8 that accused Nitin had come to his room on the date of incident in the morning alongwith Bharti, Raju and the deceased. They had come there in a long car, which ultimately came to be a Hyndai Accent Car. As per the testimony of PW8 Bharti was guarding the room from outside while she heard loud noise of 'Dhum - Dhum' from the room of the accused Nitin. This gives a clear impression that accused Nitin alongwith Raju were inside the room attacking the deceased. As noticed by me in the foregoing part of the judgment, multiple injuries were found on the dead body of deceased during postmortem which could not be inflicted by a single person. These were the handiwork of more than one person. As per the evidence led by the prosecution, none else than accused Nitin, Bharti, Raju and the deceased had SC No.89/11. Page 28 of 30 come to that room on the day of incident. From this also, it can be safely inferred that accused Nitin and Raju were inside the room and inflicted fatal injuries upon the deceased.
43. PW6 had seen accused Nitin running away from the spot of incident alongwith accused Raju. Even if it be accepted for the sake of argument as argued by Ld. Counsel for the accused that there is no direct evidence of the accused Nitin having attacked or hit the deceased, still his conduct during the incident and after the incident makes it limpid that he shared the intention with his other two associates to kill the deceased. Such common intention of accused Nitin alongwith his two other associates can be gathered from the following circumstances :
(i) He did not raise any alarm when the deceased was being hit in his room;
(ii) He did not make any attempt to save the deceased from the attack;
(iii)He did not call the police;
(iv)He ran away suspiciously from the spot of incident after the commission of crime alongwith associate Raju;
(v) He gave false answers in his examination u/s.313 Cr.PC where he stated that he was not present in his room on the day of incident;
(vi)He absconded after the incident and could be arrested only on 11.5.08;
44. All the aforesaid circumstances taken together lead to SC No.89/11. Page 29 of 30 only inference that accused Nitin shared common intention with his two associates to do away with deceased Babloo. None of these circumstances individually or collectively exculpates accused Nitin.
45. The alibi - raised by the accused that he was not present in his room on the day of incident and he did not know who inflicted injuries upon the deceased cannot be countenanced for the reason that he nowhere explains how the deceased reached his room. Even if, it may be taken that deceased was brought there by Bharti and Raju, then also question arises who gave them the keys of the room and who permitted them to go inside the room. It is not the defence of the accused that he provided the keys of the room to Bharti and Raju and himself left for his job. What becomes apparent that accused Niitin was present in the room at the time of incident as deposed rightly by PW6 and PW8.
46. Furthermore, mere act of the accused Nitin of providing his room to Bharti and Raju for the perpetration of the ghastly act of killing deceased, also makes him liable for the murder of the deceased, albeit with the aid of section 34 IPC.
47. As a consequence of the aforesaid discussion, the accused Nitin is hereby convicted for having committed the offence punishable u/s.302/34 IPC.
Announced in open (VIRENDER BHAT)
Court on 03.3.2012. A.S.J. :Dwarka Courts
New Delhi.
SC No.89/11. Page 30 of 30