Delhi District Court
Be Helpful To Refer To He Case Of State Of ... vs Bharwad Jakshibhai Nagribhai on 10 March, 2022
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Sanjay @ Ors.
FIR NO. : 387/2009
P.S. : Sultanpuri
R-NO. : 529877-2016
Date of commission of offence : 05-12-2019
Name of Informant/complainant : Ajay Kumar
Name of accused : Sanjay Singh S/o Bhajan lal, Sanjay s/o Om
Prakash and Surinder
Offence/s complained of : s. 323/325/341/34 IPC
Cognizance under section/s : s. 323/325/341/34 IPC
Charges framed under section/s : s. 323/325/341/34 IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 10-03-2022
Date of pronouncement : 10-03-2022
Final Order : Conviction
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Ld. Counsel for the accused.
Present : Pritu Raj
M.M.- 01,
Rohini Courts, Delhi.
State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 1 of 26
JUDGEMENT
1. The accused persons are facing trial for offences s. 323/325/34134 IPC.
2. Stated succinctly, the facts germane for the prosecution of the case is that on 05- 12-2009, the complainant was sleeping at his house. At around 11:30 pm, the accused Sanjay S/o Bhajan Lal called the complainant outside his house by calling his name. When the complainant came outside, the accused persons namely Sanjay Singh S/o Bhajan Lal, Sanjay s/o Om Prakash and Surinder started beating the complainant. On the complainant raising voice, the younger brother of the complainant namely Jitender came outside and when he tried to save the complainant, he was also assaulted by the accused persons with sticks and stones as a result of which he along-with the complainant suffered injuries and hence the present case.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 387/2009 on 05-12-2009 and, after investigation, submitted the charge sheet on 14-07-2012 against the aforementioned accused persons s. 323/325/34134 IPC. Cognisance was taken and provisions of section 207 Cr.P.C. were complied on 25-10-2012.
4. Charges s. 323/325/34134 IPC were framed and read over to the accused, in Hindi, on 11-01-2013 to which they denied the incident and claimed to be tried.
State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 2 of 26
5. The prosecution, in order to prove the case beyond all reasonable doubt, examined seven witnesses in support of its case during the course of trial.
6. PW1 PW1/ Ajay Kumar that on 05.12.2009, at about 11.30 pm, he was present at my home. He deposed that on that day, at that time you accused Sanjay S/o Sh. Bhajan Lal came to his home and called him outside. He further deposed that he went out at that time and 4-5 persons were there. He further deposed that you accused Sanjay, S/o Sh. Bhajan Lal and another accused Sanjay alongwith other persons started scuffling (hathapai) with him, he made alram " bachao bachao". He further deposed that his brother namely Jitender came to rescue him. He further deposed that when his brother was taking him inside, you accused Sanjay from Mangol Puri hit his brother on his head with a brick upon which his brother became unconscious. He further deposed that you accused Surender caught hold on him and both the accused Sanjay gave beating to him with lathi and dands. He further deposed that when people gathered there, you accused persons left the spot leaving your vehicle a TOYOTA Qualis bearing no. DL4CR5944 at the spot. He further deposed that he took his brother to the hospital. He further deposed that his statement was recorded by the police after three days despite repeated request. He further deposed that the said vehicle was taken into custody by the police officials. He further deposed that his brother remained admitted in the hospital for about 18-20 days. He further deposed that he is News Editor and used to print the news in Daink Saksham Bharat and due to that reason you were State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 3 of 26 nurturing ill will towards him as he had printed the news against the wrong acts. The witness correctly identified you during his deposition in the Court.
7. PW-2 PW2/ Sh. Jitender deposed that on 05.12.2009, at about 11.30 pm, he was present at his home. He further deposed that at that time, he heard the noise of his brother Ajay from outside on which he came out and saw that all of you were giving beating to his brother with danda and lathi. He further deposed that 4-5 persons were there. He further deposed that when he was taking his brother inside, the accused Sanjay from Mangol Puri hit him on his head with a brick upon which he became unconscious. He further deposed that he remained unconscious in the hospital for about 15 days. The witness correctly identified you during his deposition in the Court.
8. PW-3 PW-3/Dr. P. C. Prabhakar deputed by DMS of SGM Hospital to depose on behalf of Dr. Sanjay Kaushik who has been left the services from the hospital. He deposed that as per MLC placed on record injured was brought before Dr. Sanjay Kaushik and the MLC no. 16638 & 16639 in the name of patient Jitender & Ajay Kumar was prepared by said Doctor is on record is Ex. PW3/A & B . He further deposed that the said doctor refer the patient Jitender to surgery after written history of the patient
9. PW-4 PW4/ SI Mahender Kumar that on 08.12.2009 he was posted at P.S Sultanpuri as ASI/Duty Officer and his duty hours were from 08.00 am to 04.00 State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 4 of 26 pm. He deposed that on that day, at about 11.30 am, he received rukka from SI Swaroop Singh and on the basis of rukka, he registered FIR No. 387/09 Ex. PW4/A (OSR) and he also made endorsement on the rukka Ex. PW4/B. He further deposed that after the registration of FIR, he handed over the rukka and computerised copy of FIR to SI Swaroop Singh
10. PW-5 PW5/Ct. Satish that on 06.12.2009, he was posted at PS Sultan puri as Constable. He deposed that on that day, he along with SI Swaroop Singh were on emergency duty. He further deposed that on that day, IO- SI Swaroop Singh received DD no. 5 B regarding quarrel at B-2/370, Sultan Puri, Delh and after receiving the same, he along with IO reached at the spot and where they came to know that the injured had already been taken to SGM Hospital. He further deposed that accordingly, they went to SGM Hospital, where they met with injured namely Jitender and he was inquired by IO. He further deposed that he replied that 2-3 persons came on Qualis car bearing no. DL4C-R5944 and he also disclosed that he know the above 2-3 persons as they are residing in Mangol Puri at H No. B-657, Mangol Puri, Delhi. IO collected the MLC of injured from the hospital.
11. PW-6 PW6/Dr. Manoj Dhingra that on 17.05.2010, he was posted at SGM Hospital as HOD. He deposed that on that day, after going through MLC no. 16638 of Jitender (already Ex. PW3/A) have given his opinion on MLC that the nature of injury was grievous in nature. He further deposed that he has given his State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 5 of 26 opinion on the basis of NCCT Head and neurological opinion which was provided to him by the IO. He further deposed that his opinion on the said MLC is given at point B.
12. PW-7 PW7/ Inspector Praveen Kumar that on 10.01.2010, he was posted at PS Sultan Puri as SI. He deposed that on that day, the investigation of the present case was handed over to him. He further deposed that he obtained the result of MLC of injured Jitender. He further deposed that the result came out on 18.07.2010, to be grievous, so on 18.07.2010, Section 325 IPC was also added in this case. He further deposed that after completion of investigation, he prepared the charge sheet and filed before the concerned court.
13. Evidence on behalf of the prosecution was closed vide order dated 25-11-2019. All the incriminating evidence which had come in evidence against the accused persons were put to the accused persons vide. SA recorded under s. 313 Cr.P.C. on 25-02-2020 wherein the accused chose to lead DE.
14. The accused persons examined DW Amrit lal and DW Manish as DW-1 and DW-
2. DE was closed vide order dated 29-10-2021.
15. Final arguments were heard on behalf of both sides on 08-03-2022 and the matter was fixed for judgement vide. order dated 08-03-2022.
State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 6 of 26
APPRECIATION OF EVIDENCE
16. The primary issue to be decided in the present case is whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
17. Before embarking to determine the guilt of innocence of the accused, it would be prudent to reproduce the relevant sections here for the sake of brevity:
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
325. Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Hurt, defined in s. 319 IPC, is as follows:
s. 319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 7 of 26 Wrongful Restraint, as defined in s. 339 IPC, is as follows:
339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
(Exception) --The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
Determination as regards section 323 I.P.C.
18. In order to successfully bring home a prosecution under section 323 IPC, it is necessary to satisfy the following ingredients, (i) that the accused caused hurt to another person; (ii) that the accused caused such hurt voluntarily and (iii) such a case was not covered under Section 334 IPC.
19. To bring home an offence under Section 323 IPC it is required to prove that - (a) the victim suffered from bodily pain or disease or infirmity; (b) that the accused caused such bodily pain to the victim and (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused.
20. This court will now examine the evidence as regards section 323 IPC led by the prosecution. In order to substantiate its case, the prosecution has examined PW-1 Ajay Kumar, who is the complainant in the present case. A perusal of the testimony of the said witness shows that the same is coherent and consistent in itself. The witness has lucidly stated that on the date of the incident, he was called out by accused Sanjay S/o Bhajan Lal and was subsequently assaulted by the accused persons. He has also correctly identified the accused persons in Court. A perusal of State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 8 of 26 the testimony of the said witness in cross-examination shows that nothing has come in his cross-examination which would shake his veracity. In fact, no question/suggestion has been put in the cross-examination of the said witness as regards the allegation under section 323 IPC.
21. Further, the second eye-witness namely Jitender(examined as PW-2), has been examined by the prosecution as PW-2 in order to further substantiate the allegation as regards section 323 IPC. The said witness has duly identified the accused persons in Court and has stated in unequivocal terms that on the date of incident i.e. 05-12-2009, the accused persons had assaulted the complaint. As had been the case with PW-1, nothing has come in the cross-examination of PW-2 to shake his veracity. No question/suggestion has been put in the cross-examination of the said witness as regards the allegation under section 323 IPC.
22. Therefore, in the considered opinion of this Court, the prosecution has been able to prove the charge u/s 323 I.P.C. against the accused persons beyond all reasonable doubt. The accused persons namely Sanjay Singh S/o Bhajan lal, Sanjay s/o Om Prakash and Surinder are hereby held guilty for the offence u/s 323 IPC.
Determination qua section 341 IPC
23. The second charge which the accused persons have been charged with is wrongful restraint as regards victim Ajay Kumar and his brother punishable under section 341 IPC. It is the case of the prosecution that all the accused persons had restrained the State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 9 of 26 complainant and his brother and thereby committed the offence of wrongful restraint.
24. It is settled law that in order to constitute an offence of wrongful restraint, the following ingredients must be established:
(i) that there is an obstruction;
(ii) that the obstruction prevents the person from proceeding in any direction and
(iii) that the person so proceeding must have right to proceed in the direction concerned.
25. Moreover, to support the charge of wrongful restraintment, there is atleast such an impression produced in the mind of the person confined, as to lead him, reasonably to believe, that he was not free to depart and that he would be forthwith restrained, if attempted to do so. Thus, whoever obstructs a person from proceeding in a direction from which the person has a right to proceed, commits an offence of wrongful restraint, which is punishable under Section 341 IPC.
26. The word "voluntary" is significant. As observed in Keki Hormusji Gharda v. Mehervan Rustom Irani, (2009) 6 SCC 475 the same connotes that obstruction should be direct. The obstructions must be a restriction on the normal movement of a person. It should be a physical one. They should have common intention to cause obstruction.
27. A perusal of the testimony of PW-1 shows that the the said witness has deposed State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 10 of 26 that the " accused Surender caught hold on me and both the accused Sanjay gave beating to me with lathi and dandas." It is trite law that the crux of the offence u/s 341 IPC is that the accused should have caused restrictions upon the right of the victim to proceed in nay particular direction, in which the victim had a right to proceed. In the present case, a perusal of the testimony of PW-1 shows that he was assaulted by the accused persons and during the assault, when the victim/complainant tried to escape the clutches of the accused persons and sought to leave the place of incident, he was stopped by the accused Surender and was subsequently assaulted by the remaining accused persons. Nothing has come in the cross-examination of the accused person on this aspect so as to shake his veracity/truthfulness. In-fact the complainant has neither been cross-examined at all on this point nor has any suggestion even been put to him to deny the averments made by him in his examination-in-chief.
28. In light of the aforesaid observations, this Court is of the considered opinion that the prosecution has been successfully discharge its burden of proof qua the offence under section 341 IPC.
Determination qua section 325 IPC
29. The third charge which the accused persons have been charged with is cvoluntarily grievous hurt to victim Jitender punishable under section 325 IPC. It is the case of the prosecution that all the accused persons had the victim with a brick on his head and therefore caused grievous injury to the said victim.
State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 11 of 26
30. In order to prove the case against the accused persons, let us examine the witness/evidence adduced by the prosecution. The prosecution has examined eye- witnesses PW-1 and PW-2 in support of its case. Both the witnesses have stated in unequivocal terms about the nature of the injury which has been suffered by PW2. While PW-1 has stated that, "while he was taking me me inside the accused Sanjay from Mangolpuri hit my brother on his head with a brick upon which my brother became unconscious.", PW-2 has also stated in his examination-in-chief that " when I was taking my brother inside, the accused Sanjay from mango Puri hit me on my head with a brick upon which I became unconscious. I remained unconscious in the hospital for about 15 days." A perusal of the said testimonies of both the witnesses makes it amply clear that they have both supported the case of the prosecution and nothing has come in their cross examination which would shake their veracity or their truthfulness. Both these witnesses were cross examined at length by the accused and they have stood the test of cross-examination.
31. Now, the second category of evidence which has been adduced by the prosecution is the medical evidence. The MLC bearing no. 16638 has been exhibited as PW3/A. A perusal of the said MLC shows that the nature of injury which has been inflicted upon he victim has been shown as grievous. However, the mere fact that the nature of injury which has been suffered by the victim is grievous is not sufficient in itself to prove the commission of offence under section 325 IPC. It is trite law that in order to prove the commission of an offence under the aforesaid section, it is essential to State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 12 of 26 prove that the said was caused 'voluntarily'. The fact as to whether the said test has been satisfied or not has to be determined from the conduct of the accused. This Court will not proceed to examine the existence of the said requirement of 'voluntariness' in the present case.
32. A perusal of the testimony of both the eye-witnesses produced by the prosecution shows that both the witnesses have deposed that the accused Sanjay had hit the brother of the complainant i.e. Jitender on the head. The same has been reiterated by the PW2 who has stated that he was hit on his head by a brick by accused Sanjay. This fact has also been duly observed on the MLC marked above. The intention of any person has to determined with respect to the conduct of the accused. Furthermore, Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice to commit the crime.
33. In the present case, the intention of the accused persons to commit an offence under section 325 IPC is manifestly clear from their conduct, as discussed above. Therefore, this Court is of the considered opinion that the prosecution has been able to prove the causation of grievous injury and the intention to cause the same. The only thing which remains to be proved is that the nature of injury which has been caused falls within the ambit of injuries as referred under section 320 IPC. It would be prudent here to reproduce section 320 IPC:
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":
(First) -- Emasculation.
State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 13 of 26 (Secondly) --Permanent privation of the sight of either eye.
(Thirdly) -- Permanent privation of the hearing of either ear, (Fourthly) --Privation of any member or joint.
(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face.
(Seventhly) --Fracture or dislocation of a bone or tooth.
(Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
34. Coming to the facts of the present case, perusal of the medical documents exhibited by the prosecution shows that one MR. Manoj Dhingra has been examined as PW-6 and he stated in his examination-in-chief that he has given his opinion on MLC that the nature of the injury suffered by the victim/PW-2 was grievous in nature. He has further gone on to state that he has given such opinion on the basis of the NCCT Head and neurological opinion which was provided to him by the IO. A perusal of the said opinion, on the basis on which PW-6 had deposed in Court, shows that the type of injury which had been suffered by the victim was shown to vie multiple "bilateral frontal" and "parietal lobe hemorrhagic contusions". In the considered opinion of this Court, this type of injury falls squarely within the seventh category of injury as stated above.
35. As regards the evidentiary value of the testimony of an injured witness, it would be helpful to refer to he case of State of Gujrat vs Bharwad Jakshibhai Nagribhai State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 14 of 26 and Others 1990 CrLJ 2531, wherein it has been observed that "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. (5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation.
36. Upon the cumulative reading of the aforesaid observations, this court is of the considered opinion that the prosecution has been able to prove the case as regards commission of offence under section 325 IPC against the accused beyond all reasonable doubt.
Determination qua joint liability u/s 34 IPC
37. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create any substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 15 of 26 Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or at the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 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.
State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 16 of 26
38. The Court while discussing the principle of common intention, has observed in Virendra Singh V. State of Madhya Pradesh ((2010) 8 SCC 407) "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 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 302 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 State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 17 of 26 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 them 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.
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 State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 18 of 26 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 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."
39. It is also a settled principle of law that common intention can be formed on the spot also and there need not be any pre-conceived plan between the accused persons or any meeting of minds prior to the incident in question. The Hon'ble Apex Court in Suresh And Anr vs State Of U.P, Appeal (crl.) 821 of 2000, has reiterated the same:
"Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the 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 each of them had done it individually. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre- arranged plan of the accused participating in an offence. Such a pre- concert or pre-planning 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 a spur of 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."
40. Therefore, the crux of the law what remains to be adjudicated here is whether the prosecution has been able to prove the common intention of a common intention, as envisaged under section 34 IPC, against the accused persons. The proof of such State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 19 of 26 common intention has to be found by the acts of the accused persons and it has to be seen whether the actions of the accused persons are enough to attribute a common intention to all of them towards the commission of the offence.
41. This court will now proceed to appreciate the evidence led by the prosecution in order to prove the existence of common intention between the accused persons. In the considered opinion of this Court, the fact that the accused Sanjay called out the informant at about 11:30 pm in the night and the fact that when the said complainant came out, he was assaulted by all the accused persons. Further, the fact that during the course of the assault by the accused persons, when the complaint and his brother tried to escape, they were stopped by the accused persons and the brother of the complainant was hit on the head by the accused shows that the accused persons had acted in unison it is trite law that 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. (Mehbub Shah v. Emperor (AIR 1945 PC 148))
42. Upon a careful consideration of the aforesaid facts and circumstances, this Court is of the considered opinion that the accused persons had acted in the furtherance of their common intention to commit the offences under section 323/325/341 IPC and had acted the furtherance of the same. The same is duly proved from the testimonies State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 20 of 26 of PW-1 and PW-2 who have stepped into the witness box and deposed regarding the conjoint manner in which the offence has been committed giving rise to the fact of existence of common intention of all the accused persons towards the commission of the offences in question in the present case.
43. Hence, this court is of the considered opinion that the prosecution has been able to prove the case as regards existence of common intention of all the accused persons beyond all reasonable doubt.
44. Before parting, it would be appropriate to discuss the observations /objections raised by the Ld. Counsel for the accused.
45. The first objection raised by the Ld. Counsel for the accused is that the name of the assailants have not been mentioned in the MLC which has been prepared and exhibited by the prosecution. This Court is of the considered opinion that this contention is devoid of merit and deserved to be rejected. Reliance in this regard is placed on decision of Apex Court in Pattipati Venkaiah v. State of A.P., (1985) 4 SCC 80, it was held that :-
"Another argument advanced before us was that although PW-1 and PW-2 were supposed to be eyewitnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico-legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the doctor. It is well settled that doctors, before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 21 of 26 the informants they are likely to become witnesses of the occurrence which is not permissible."
46. The second objection which has been raised by the Ld. Counsel for the accused is that the IO of the present case has not been examined. However, it is settled law that the mere-nonexamiantion of IO is not fatal for the case of the prosecution and the same assumes significance only when any prejudice has been caused to the defence. Relaince in this regard is placed on Lahu Kamlakar Patil v. State of Maharashtra as reported in (2013) 6 SCC 417 under para-18, as follows:
18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the F.I.R. but has given the excuse that it was taken on a blank paper. The same could have been clarified by the Investigating Officer, but for some reason, the Investigating Officer has not been examined by the prosecution. It is an accepted principle that non- examination of the Investigating Officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996)2 SCC 317], this Court has stated that non- examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar[(2000) 9 SCC 153], it has been opined that when no material contradictions have been brought out, then non- examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the Investigating Officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar[(2001)6 SCC 407], Rattanlal v. State of Jammu and Kashmir[(2007)13 SCC 18] and Ravishwar Manjhi and others v. State of Jharkhand[(2008)16 SCC 561], has explained certain circumstances where the examination of Investigating Officer becomes vital. We are disposed to think that the present case is one where the Investigating Officer should have been examined and his non-examination creates a lacuna in the case of the prosecution.
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47. Similarly, In Baldev Singh v. State of Haryana as reported in 2016 Cri. L.J. 154, it has been as follows:-
"16. Contention at the hands of the learned Senior Counsel for the appellant is that non-examination of Chander Singh-SI who prepared rukka and who investigated the case raises serious doubts about the prosecution case. Material on record would show that Chander Singh-SI who investigated the case was not examined by the prosecution in spite of several opportunities. No doubt, it is always desirable that prosecution has to examine the investigating officer/police officer who prepared the rukka. Mere non-examination of investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution case. Whether or not any prejudice has been caused to the accused is a question of fact to be determined in each case. Since Ram Singh-PW-1 was a part of the police party and PW-1 has signed in all recovery memos, non- examination of Chander Singh-SI could not have caused any prejudice to the accused in this case nor does it affect the credibility of the prosecution version."
48. In the present case, nothing has been brought on record to show that any prejudice has been caused top the accused persons on account of the non-examination of the IO. Moreover, nothing has come in the testimonies of Defence witnesses adduced by the defence to show that any prejudice has been caused to the defence. The contention is therefore rejected as being devoid of merit.
49. The last objection raised by the Ld. Counsel for the accused that there has been a an inordinate delay of almost one week in lodging the present FIR and therefore the same is fatal for the case of the prosecution. The law in regard to delay in FIR is no longer res-integra and the same has been effectively settled by various authoritative pronouncements.
50. In 'Sahib Ram & Anr. Vs State of Maharashtra', Hon'ble Supreme Court of India relied upon the judgment of 'State of Himachal Pradesh vs Gyan Chand State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 23 of 26 Pruthi' (2000) 6SCC 71 wherein it was observed that delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court in its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.
51. Similarly, in 'Amar Singh vs Balvinder Singh & Ors' (2003) 2SCC 518, Hon'ble Supreme Court has held, "there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful... For this ("lodging FIR"), a host of circumstances, like the condition of the first informant, nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging an FIR."
52. Further, in Smt. Hardevi & Ors. Vs State of Delhi, Crl. A No. 76/2001, Hon'ble Delhi High Court while relying upon the Judgment titled Ravinder Kumar vs State of Punjab (2001) 7SCC 690, held "the attack on prosecution cases on the ground of State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 24 of 26 delay in lodging the FIR has almost bogged down as a stereo type redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police It has to be remembered that law has not fixed any time for lodging the FIR. Hence, a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.....our effort to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR, the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version, no consequence shall be attached to the mere delay in lodging the FIR.
53. In the present case, in the considered opinion of this Court, the deal has been satisfactorily explained by the prosecution. The brother of the complainant had suffered grievous injuries due to a brick being hit on his head. A perusal of the MLC of the said person makes it ampler clear that at the time when the said person was State v. Sanjay @ Ors. FIR NO. : 387/2009 Page No. 25 of 26 brought to the hospital, he was disoriented and not in a fit state of mind to give any statement. Moreover, the seriousness of the injury is further accentuated by the nature of injuries(parietal lobe hemorrhagic contusions) which are serious in nature. Therefore, any reasonable and prudent person, acting int he normal course of things, would first take steps for the treatment of his kin and only after such treatment, he can be expected to set the legal machinery in motion. This Court finds absolutely no ground to take any alternative approach, given the normal state of human affairs. IN the considered opinion of this Court, the delay in lodging of FIR has been satisfactorily explained and the same cannot be said to be fatal for the case of the prosecution.
54. In view of above discussion, this Court is of the considered opinion that the prosecution has been able to prove it's case against the accused persons u/s 323/325/341/34 IPC beyond all reasonable doubt.
55. The accused persons are convicted of the offences u/s 323/325/341/34 IPC.
56. Copy of judgement be given free of cost to the convicts.
Announced in open court
On 10th March, 2022 Pritu Raj
Metropolitan Magistrate-01
Rohini Courts, Delhi.
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