Delhi High Court
Om Singh @ Omi vs The State, Delhi Admn. on 14 September, 2009
Author: Ajit Bharihoke
Bench: Sanjay Kishan Kaul, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : September 07, 2009
Judgment delivered on : September 14, 2009
+ CRIMINAL APPEAL NO.249/1996
OM SINGH @ OMI ..... Appellant
Through: Mr. Viraj R. Datar, Advocate
Versus
THE STATE, DELHI ADMN. ..... Respondent
Through: Mr. Pawan Sharma, Advocate
WITH
CRIMINAL APPEAL NO.54/1997
LAKHAN @ BIJENDER @ MINTU ..... Appellant
Through: Mr. Bhupesh Narula, Advocate
Versus
STATE ..... Respondent
Through: Mr. Pawan Sharma, Advocate
AND
CRIMINAL APPEAL NO.57/1997
MAHIPAL ..... Appellant
Through: Mr. Bhupesh Narula, Advocate
Versus
STATE(DELHI ADMN.) ..... Respondent
Through: Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 1 of 10
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
AJIT BHARIHOKE, J.
1. Above three appeals have been separately filed by the appellants Om Singh @ Omi, Lakhan @ Bijender @ Mintu and Mahipal against common judgment dated 11.09.96 of the learned Additional Sessions Judge and consequent order on sentence of the same date.
2. Briefly stated, case of the prosecution as revealed in the FIR is that on 10.11.93 at about 8.00 PM on the pavement of Ganda Nala in front of Gali No.4, Jagjivan Nagar, appellants Om Singh @ Omi, Mahipal and their co-accused Vijay Pardeshi were seen giving kicks and fist blows to Mahender Singh (deceased). Meanwhile, appellant Lakhan @ Bijender @ Mintu arrived at the spot and struck with his head against the chest of Mahender Singh who fell down due to the impact. Co- accused Vijay Pardeshi (since deceased), thereafter, put his foot and said that he had remained in jail for three months because of him (the deceased) therefore he would kill him. Some persons from the public tried to rescue the deceased but Vijay Pardeshi again threw him on the ground and as a result Mahender Singh sustained injuries and blood started dripping from his lips and the fore-head. Mahender Singh was Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 2 of 10 removed to the GTB Hospital and he was found to have suffered as many as 14 injuries because of the beating i.e. kicks and fist blows given by the appellants and their co-accused Vijay Pardeshi. Mahender Singh, unfortunately, expired on the same night at 11.30 PM.
3. Initially, a case under Section 307/34 IPC was registered on the basis of the complaint statement given by PW Ashok Kumar to SI Rajesh Kumar. On the receipt of information of death of Mahender Singh, the case was converted into a case of murder punishable under Section 302/34 IPC. On completion of the formalities of investigation, appellants as well as Vijay Pardeshi were sent for trial. They were charged for the offence punishable under Section 302 IPC read with Section 34 IPC. All of them pleaded not guilty and claimed the trial.
4. Learned Additional Sessions Judge on consideration of the evidence led by the prosecution, various exhibits and the statements of the appellants and Vijay Pardeshi recorded under Section 313 Cr.P.C., came to the conclusion that the appellants and Vijay Pardeshi had indeed beaten the deceased Mahender Singh by kicking him and giving him fist blows and on consideration of the evidence on record, he drew an inference that the appellants as well as their co-accused Vijay Pardeshi (since expired) shared common intention to cause death of Mahender Singh. Accordingly, he convicted all of them for murder punishable under Section 302 IPC with the aid of Section 34 IPC. The learned Additional Sessions Judge as a consequence of conviction, Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 3 of 10 sentenced respective appellants to undergo imprisonment for life and also to pay fine of Rs.500/-, in default of payment of fine to undergo further R.I. for a period of one month respectively.
5. Aggrieved by the impugned judgment of conviction and consequent order on sentence, the appellants as well as Vijay Pardeshi preferred separate appeals. During the pendency of the appeal, Vijay Pardeshi died and as such the appeal against him stood abated.
6. Mr. Viraj R. Datar, advocate and Mr. Bhupesh Narula, advocate for the respective appellants have argued almost on similar lines. During the course of arguments, learned counsels for the appellants, on instructions from the respective appellants, gave up their plea against the finding of the learned trial Judge in the impugned judgment on the factual matrix of the case i.e. the appellants along with Vijay Pardeshi had given kicks and fist blows to the deceased resulting in as many as 14 injuries on the deceased. They have, however, submitted that the learned Trial Court has erred grossly in not appreciating the true scope and applicability of Section 34 IPC while holding the appellants guilty for the offence punishable under Section 302 IPC with the aid of Section 34 IPC. They have submitted that the learned Trial Court ought to have considered that there was no evidence whatsoever of any pre-concert amongst the appellants and Vijay Pardeshi and that the incident was a sudden occurrence in which the deceased was given kicks and fist blows and that no weapon was used by anyone of them. Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 4 of 10 In view of the aforesaid factual matrix, it is submitted on behalf of the appellants that there was no occasion for drawing an inference that the appellants and their co-accused Vijay Pardeshi shared common intention to cause death of the deceased and they gave beating to him in furtherance of such intention. According to the learned counsels for the appellants the only inference which could be gathered from the facts and circumstances of the case is that the appellants gave beating to the deceased in furtherance of their common intention to cause hurt, simple or grievous, to the deceased.
7. Learned counsel for the State, on the other hand, has defended the impugned judgment of conviction. He has submitted that from the evidence on record, it is proved that appellants as well as their co- accused Vijay Pardeshi were beating the deceased by giving him kicks and fist blows in concert and the deceased was so brutally beaten that he died within hours. Not only this, appellant Lakhan @ Bijender @ Mintu, as per evidence, had struck his head against the chest of the deceased, which is vital part of the body. He has also pointed out that Vijay Pardeshi had placed his foot on the chest of the deceased and said that "he had remained in jail because of the deceased and he would not let him go alive", which circumstances, it is submitted, are sufficient to infer common intention on the part of the appellants and Vijay Pardeshi to cause death of the deceased. Thus, according to the learned counsel for the State, the appellants have been rightly convicted under Section 302 IPC with the help of Section 34 IPC. Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 5 of 10
8. We have considered the submissions made by respective parties and perused the material on record.
9. It is settled law that Section 34 of the Indian Penal Code is only a rule of evidence and does not create a substantive offence. It lays down a principle of constructive liability. When two or more persons join actively in an assault on a third person, they are responsible, irrespective of the individual role played, for the injuries caused to the victim to the extent to which they share a common intention to cause such injuries. In order to invoke Section 34 IPC to hold a person constructively liable for the act of someone else, the onus is heavy on the prosecution to prove the common intention. Common intention pre-supposes a pre-concert to commit an offence. It is generally not possible to get direct evidence of pre-meditation to commit the offence between the parties. The common intention of the parties, however, can be inferred from the accompanying facts and circumstances of the case, such as the role played by the accused persons immediately before or after the occurrence, the words spoken or uttered, the nature of the weapon used and nature of injuries caused to the victim etc.
10. In the case of Pandurang and Others Vs. State of Hyderabad, AIR 1955 SC 216, the Hon‟ble Supreme Court, while discussing the applicability and scope of Section 34 IPC and the nature of evidence of prior concert, observed thus:
"32. 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 Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 6 of 10 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', AIR 1945 PC 118 at pp. 120 & 121 (B). 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: AIR 1925 PC 1 at pp 5 & 6 (A) and AIR 1945 PC 118 (B). 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.
33. 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.
34. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack, not even immediately before. Pandurang is not even of the same caste as the others Bhilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But, to quote the Privy Council again, "the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".
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". (Sarkar's Evidence, 8th edition, page 30)".
11. From the legal principle enunciated in the above said judgment, it transpires that common intention as envisaged in Section 34 IPC can Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 7 of 10 be established by direct as well as the circumstantial evidence. In case of circumstantial evidence, the Court is required to look into the accompanying facts and circumstances of the case to infer common intention. The common intention need not be arrived at much prior to the occurrence, it could develop suddenly. If the prosecution fails to establish the common intention or pre-arranged plan in such cases, each participant to the occurrence would be individually liable for whatever injury he had caused to the victim but none would be vicariously liable for the act of any of the others.
12. In the instant appeals, case of the prosecution as it unfolds from the record is that the appellants along with Vijay Pardeshi were found giving kicks and fist blows to the deceased Mahender Singh. He suffered as many as 14 injuries. There is no evidence of any weapon having been used nor there is any evidence of any previous enmity or motive on part either of the appellants to cause death of the deceased. As per the MLC Ex.PW15/H, the deceased was admitted to the hospital with the alleged history of assault with alcohol ingestion. Therefore, a possibility cannot be ruled out that the deceased under the influence of liquor was causing nuisance, which prompted the appellants and Vijay Pardeshi to beat him. The appellants admittedly were giving kicks and fist blows to the deceased, therefore, they cannot be attributed with the knowledge that such physical beating given by them to the deceased would result in his unfortunate demise. In the background of above factual matrix, we find it difficult to sustain the view of the Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 8 of 10 learned Additional Sessions Judge that the appellants acted in furtherance of their common intention to cause death of the deceased. The only inference which could be gathered from aforesaid facts could be that the appellants, when they collectively started beating the deceased, developed common intention to cause grievous hurt to the deceased as while brutally kicking and giving fist blows to the deceased they were supposed to have known that their collective acts would result in grievous injury to the deceased.
13. Once the prosecution has failed in establishing that the appellants while beating the deceased shared a common intention to cause his death, they cannot be convicted under Section 302 IPC with the aid of Section 34 IPC. In view of the decision in the case of "Pandurang and Others Vs. State of Hyderabad" referred to above, once the plea of common intention fails to bring home the charge of murder against the appellants or anyone of them, the prosecution was required to prove beyond doubt on record that which of the blows inflicted upon the deceased proved fatal and also to link the blow or blows with the individual appellants or anyone of them. In the instant case, the prosecution has not been able to prove individual blows inflicted by the specific appellant(s) resulting in specific injuries to the deceased. Thus, it is not established that the blow caused by which of the appellant(s) was the fatal one, therefore, none of the appellants in the absence of such proof can be convicted for murder of the deceased.
Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 9 of 10
14. However, from the facts discussed above, clearly a common intention on the part of the appellants and their co-accused to cause grievous hurt to the deceased is made out. Therefore, we partly accept the appeal and modify the judgment to alter the conviction of the appellants from under Section 302 IPC read with Section 34 IPC to the offence punishable under Section 325 IPC read with Section 34 IPC. We also modify the impugned order on sentence passed by the learned trial Judge and replace it by the order of sentence directing respective appellants to undergo rigorous imprisonment for the period of three years each.
15. We have been informed that each of the appellants have already suffered incarceration for a period of more than three years during the investigation and trial of this case. Therefore, there is no need to take them into custody. Their bail-cum-surety bonds accordingly stand discharged.
16. Appeals are allowed to the aforesaid extent.
AJIT BHARIHOKE, J.
SEPTEMBER 14, 2009 SANJAY KISHAN KAUL, J.
pst
Crl. Appeal Nos.249/96, 54/97 & 57/97 Page 10 of 10