Delhi High Court
Robin Singh vs State (N.C.T. Of Delhi) on 28 February, 2005
Equivalent citations: 118(2005)DLT168, 2005(80)DRJ449
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. This order shall dispose of two bail applications - one of Robin Singh and the other of Kesar Singh.
2. The case of the prosecution is that on the night of 20.10.2003 at about 11.35 p.m. five to six police officials in plain clothes came to the STD shop of the Complainant (Krishan Kumar) on the ground floor and it is stated that all these police officials were in a drunken state. It is further the case of the prosecution that there were three other persons who accompanied these police officials. The names of the police officials as indicated in the FIR are Rajbir Singh, Constable Robin Singh, Constabl Jai Prakash both of Police Station Madipur and Constable Rohtas of Police Station Punjabi Bagh. In the FIR it is clearly indicated that the names of the other police officials were not known to the informant but that he could identify all of them. It is the case of the prosecution that some of these persons came in an Indica car and three others came on foot. They knocked the door and the informant as well as his deceased brother -- Sushil Kumar's wife looked from the window and heard that these persons were asking them to come down. It is alleged in the FIR that Rajbir Singh shouted and asked him to come down and also threatened to shoot him in case he did not come out. The informant's brother (Sushil Kumar) went down and opened the door. Rajbir Singh and his accomplies started beating Sushil Kumar. It is alleged that S.I. Rajbir Singh was armed with a wooden leg of a Charpai (Paya) and was beating Sushil Kumar with the same. The informant has stated that he was watching this from the 2nd floor but did not come down. Similarly, the deceased's wife was also watching the same and was crying. According to the informant, they kept beating him for 15 to 20 minutes and thereafter took him away in their Indica Car and he was dropped back at 1.30 p.m. outside the house. At that time, the said Sushil Kumar (deceased) was already dead. Accordingly, it is the allegation of the prosecution that the said Sushil Kumar was murdered by the police officials.
3. The FIR for an offence under Section 302 read with Section 34 of the IPC was registered against the accused. The learned counsel for the petitioners argued that even upon examining the FIR and the allegations contained therein, a case of Section 302 is not at all made out. They say so because according to them, the opinion of a Board of Doctors was sought on the cause of death of the deceased Sushil Kumar. That opinion has been placed on record and specific answers have been given to specific questions. With regard to the question - what is the cause of death? - the answer given is as under:-
After considering the postmortem examination report No. 1491/2003 dated 22.10.2003, CFSL toxicological analysis report no. CFSL-2003/C-0578 dated 17.11.2003 and histo-pathologicval analysis done by a board of doctors of Department of Pathology. Maulan Azad Medical College, New Delhi Lab. Ref. No. As 10/03, the board is of the opinion that the cause in this case was due to acute myocardial insufficiency.
(underlining added) In respect of the Question as to whether the external injuries found on the body were sufficient to cause death, in ordinary circumstances?, the answer given is as under:
No, the external injuries found on the body were not sufficient to cause death, in ordinary circumstances.
Questioned was - Whether these injures have an effect on the cause of death, or have precipitated the cause of death? The answer given is as under:-
The left anterior descending coronary artery revealed 90% block by organized canalized thrombus. Secondly, the septum of the heart, on its upper third, showed streaks of fibrosis indicating healed ischaemic changes. This mean that Shri Sushil Kumar had already survived from a previous myocardial infarction and because of 90% blockage of his left anterior descending coronary artery, he was also under the risk of having another myocardial infarction, in case his heart could not receive adequate blood supply when the demand would increase. There is an increase in demand of blood when the heart pumps faster than in normal circumstances. This increased demand in this case resulted from increase physical and mental trauma alleged to have been caused to Shri Sushil Kumar on 20.10.2003. As the supply of blood to the heart was already compromised due to the blockage of coronary artery, adequate blood required by the heart at the time of trauma could not be supplied. This resulted in acute myocardial insufficiency, which is the cause of death. In view of the above, we are of the considered opinion that the external injuries found on the body of Shri Sushil Kumar could have precipitated the cause of death.
(underlining added)
4. In view of this opinion of the board of doctors, the learned counsel for the petitioner submitted that the external injuries, which were six in number, were not sufficient to cause death in ordinary circumstances. Furthermore, the reason why the deceased Sushil Kumar died was because he had a bad heart condition. 90% of his coronary artery was blocked and he had suffered an earlier heart attack. These facts were unknown to the accused. In other words, it is the contention of the learned counsel or the petitioner that had the medical condition of the deceased not been such, in the opinion of the board of doctors, the external injuries found on his body were not sufficient to cause death in ordinary circumstances. Therefore, it cannot be a case falling under Section 302 of the I.P.C. The learned counsel for the petitioner further relied upon Pandurang and others v. State of Hyderabad : ; Hiralal Mallick v. State of Bihar: and Lala Ram and Others v. State of U.P.: to show that the petitioners Robin Singh and Kesar Singh could not be roped in, in any event, by invoking Section 34 of the IPC. In Pandurang's case (supra), it was observed as under:-
Rasikabai says that the accused raised their axes and sticks and threatened her when she called out to them, but that again is an all embracing statement which we are not prepared to take literally in the absence of further particulars. People do not ordinarily act in unison like a Greek chorus and, quite apart from dishonesty, this is a favorite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say all even when they only saw some because they are too lazy, mentally to differentiate. Unless therefore a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value. We are unable to reduce any prior arrangement to murder from these facts.
Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: - `Mahbub Shah v. Emperor', at pp. 120 and 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: at pp 5 and 6 (A) and (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.
In the case of Hira Lal (supra), the Supreme Court observed in paragraph 6 that when a crime is committed by the concerted action of a plurality of persons constructive liability implicates each participant, but the degree of criminality may vary depending not only on the injurious sequel but also on the part played and the circumstances present, making a personalised approach with reference to each. Merely because of the fatal outcome, even those whose intention, otherwise made out to be far less than homicidal, cannot, by hindsight reading, be meant to have had a murderous okindred means rea.
5. In the case of Lala Ram (supra), the Supreme Court, reiterating what it had said in Pandurang's case (supra), observed as under:-
The important question in this case is whether the version given by PW 1 can be relied upon. In Pandurang and others v. State of Hyderabad, , it is held that Unless therefore a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value.
6. In this background, it is the contention of the learned counsel for the petitioners that insofar as Robin Singh is concerned, he was not in charge. He was a person of the lowest rank in the police hierarchy, he being a mere constable. Robin Singh is not said to have been in possession of any lathi or other weapon. The only case against Robin Singh in the FIR is that he was a part of the assembly who gave a beating to Sushil Kumar. No specific role has been ascribed to him. However, in a supplementary statement of Krishan Kumar which was recorded much later on 13th March, 2004, it is stated that constable Robin Singh was beating Sushil Kumar with shoes whereas head constable Kesar Singh was only standing there. Insofar as Robin Singh and Kesar Singh are concerned, it appears that they were not liable for any injury.
7. The learned counsel for the petitioners further submitted with regard to the case of Kesar Singh that in the FIR the name of Kesar Singh does not appear at all. In fact, the informant submitted that he did not know the names of the other police officials but could identify them. In this context, the learned counsel submitted that it became imperative that a test identification parade ought to have been conducted. However, the same has not been done. It was his contention that to cover up this lcuna, a supplementary statement of the informant (Krishan Kumar) was recorded after a gap of five months, on 13.3.2004, wherein he is said to have stated that he knew all the police officials and that in the FIR he could not mention the name of Kesar Singh as the latter has come to the place recently and he had forgotten his name and now he remembers his name. According to the learned counsel for the petitioners, this statement, on the face of it, is not plausible. The learned counsel for the petitioner who argued the case for Kesar Singh also submitted that insofar as Kesar Singh was concerned, he was busy in another case in which a DD entry No. 386 was made, a copy of which is placed in the additional documents, where it is shown that Kesar Singh as at the place of an incident in that case and he arrested somebody and made certain recoveries. He had arrived at the police Post at 11.15 p.m. Thereafter, he went to the Malkhana at police station Punjabi Bagh which is almost 2 Km. away and deposited the case property and thereafter, he made the DD entry and also informed higher officials and returned to the police Post. Therefore, his presence at the alleged place of occurrence at 11.35 p.m. was also not far from doubt. The learned counsel for the petitioner also relied upon Siri Ram Sharma v. State: 1995 (2) RecentCR 197, which is a Division Bench decision of this Court. In particular, he relied upon the contents of paragraph 17 therein which reads as under:-
17. No efforts have been made by the investigating officer to take resort to test identification parades in order to pin point the identity of the appellants as the culprits of whom some vague description were there in the writing of Mohinder Kaur. The test identification parade might not have been necessary if full particulars of the culprits had been given in the said writing of Mohinder Kaur but when there were no such particulars available and onlyu vague details had been given about the culprits it was absolutely necessary in this case that the investigating officer ought to have resorted to test identification parades of the appellants so that Mohinder Kaur could pin point the appellants if they were the same culprits whom she mentioned in her writing.
He cited this judgment for the purpose of showing the imperative nature of test identification parade where full particulars of the culprits are not given.
8. Opposing the grant of bail of these two accused persons, the learned counsel for the State submitted that the deceased Sushil Kumar had six injuries on his person and one injury was on his head. The learned counsel for the State referred to various decisions of the Supreme Court to show that all the accused persons had the common intention to commit the murder of deceased Sushil Kumar. He first cited the decision of the Supreme Court in the case of Munshi Singh Gautam (D) and Others v. State of M.P JTC 2005 (1) (SC) 18. In particular he referred to paragraph 29 thereof which reads as under:
29. The residual question is what is the offence committed by him. The evidence of Dr. D.K. Satpathy (PW-16) is very relevant to decide the question. He found that the injuries were confined to the skin and upper level of the body. Grievous injuries were not found on vital parts of the body like head, liver, spleen, heart, lungs etc. The duration of the injuries were widely variant. The right lung of the deceased was TB affected. The combined effect of alcohol and the injuries shortened the period of death and resulted in a quicker death. That being so, the conviction in terms of Section 304 Part II IPC cannot be faulted. His appeal fails and is dismissed. He shall surrender to custody to serve remainder of his sentence. So far as other accused-appellants Bahadur Singh, Pooran Singh and Dhanraj Dubey are concerned, the prosecution has not been able to bring home the accusations. Therefore, their appeals deserve to be allowed which we direct. Their bail-bonds are discharged.
That was a case of custodial death and the learned counsel for the State cited this decision to show that although grievous injury was not found on the vital part of the body, yet death was caused because the deceased was suffering from TB and the Court had noted that the effect of alcohol and the injuries shortened the period of death and resulted in a quicker death. In these circumstances, the conviction under Section 304 Part II of the IPC was upheld. The learned counsel for the State then referred to the decision reported in Rameshwar Dayal and Others v. State of Madhya Pradesh and Another : 2002 1 AD (Cr.) SC 327 and, in particular he referred to paragraph 6 thereof. However, in that case, there was not only evidence of previous enmity but the circumstances clearly demonstrated that the conduct was premeditated and was concerted which was also indicated by the nature of weapons carried by the group of accused, who formed themselves into an unlawful assembly. Accordingly, the ingredients of common intention were made out. The learned counsel for the State then referred to the decision of the Supreme Court in the case of Nandu Rastogi @ Nandji Rastogi and Another v. State of Bihar: 2002 IV AD (Cr.) S.C. 273. In that case, the appellants Along with three others came armed with country made pistols. They came together, and while two of them stood guard and prevented the prosecution witnesses from intervening, three of them took the deceased inside and one of them shot him dead. Thereafter they fled together. It is, in these circumstances, that the Supreme Court held that they had been rightly convicted with the aid of Section 34 IPC. The facts, however, in the present case are different. It may be pertinent to mention that in the said decision [Nandu Rastogi (Supra)] , the Supreme Court took note of its earlier decision in the case of Suresh and another v. State of UP : and quoted a portion of that judgment which would be very apt an material for the present purpose and therefore, I reproduce the same:-
Section 34 of the Indian Penal Code recognizes the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It ia 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 plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
The last sentence of the aforesaid quotation is important. The Supreme Court held that 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. The case of Skhan Raut and Others v. State of Bihar: 2002 1 AD (Cr)SC 15 also cited by the learned counsel for the State. In particular, he relied upon paragraph 11 thereof which reads as under:-
11. However, the position of Sukhan Raut, the appellant is different. He is proved to have instigated Bhaiya Mani Raut for giving atangi blow to the deceased in consequence of which he died. Though not common object, yet common intention is proved against Sukhan Raut. It is established beyond any shadow of doubt that Sukhan Raut and Bhaiya Mani Raut shared the common intention at the time when the blow was caused on the head of Sardari Raut in consequence of which he died. Sukhan Raut is, therefore, guilty for the commission of the offence punishable under Section 302 read with Section 34 of the Code.
9. Lastly, the learned counsel for the State relied upon the decision of Salim Khan v. Sanjai Singh and Another: and in particular he referred to paragraph 1 of the order particularly to show that at the stage of grant of bail, the High Court is duty bound to consider all the statements recorded under Section 161 Cr.P.C., examine the gravity of the offence and also examine the question of possibility of the accused tampering with the evidence and possibility of getting the attendance of the accused during trial and then only would the applicant be entitled to grant of bail. In that case the Supreme Court held that the High Court had not taken such relevant material into consideration. In this context, it is submitted by the learned counsel for the petitioner that the accused are the police personnel and, therefore, there is every likelihood that they would tamper with the evidence or intimidate the witnesses. It is, therefore, submitted by the learned counsel for the State that bail ought not to be granted. Lastly, the learned counsel for the State also argued that while in the case of Rajbir Singh, bail had been granted by the learned Additional Sessions Judge, in the case of Robin Singh and Kesar Singh bail had been denied be subsequent orders passed by the learned Additional Sessions Judge. In fact, they drew my attention to the portion of the order which reads as under:-
In my view, in view of the aforesaid facts of the present case, statements of many eye witnesses about the beating given by the police officials and the medical opinion to the effect that the injuries caused to the deceased were likely to cause death in the ordinary course of nature conscience of this Court revolts even at my thought of grant of bail to the applicants.
Although, this Court does not sit as a court of appeal in considering an application under Section 439 of the Cr.P.C. yet, since the learned counsel for the State has drawn my attention to this observation and has relied upon the same for opposing the bail application. I am constrained to say that the latter portion of these observations is not correct. The Board of Doctors which had given its opinion had categorically stated in answer to Question c , as mentioned hereinabove, that the external injuries found on the body were not sufficient to cause death in ordinary circumstances. So, it appears that the revulsion of the learned Additional Sessions Judge was on the basis of an erroneous understanding of the opinion of the Board of Doctors.
10. In view of the facts and circumstances and the arguments of the learned counsel for the parties, it appears that, prima facie, at best all accused could be said to have had a common intention to cause beating to the deceased Sushil Kumar. Furthermore, at least at this stage, prima facie, the offence under Section 302 does not appear to have been made out. Thus, even if there was a common intention under Section 34 of the IPC, it was to cause beating and not to cause the death of Sushil Kumar. This is so because as per the opinion of the Board of Doctors, death of Sushil Kumar appears to have been caused by myocardial infarction and not on account of the external injuries in the ordinary course of circumstances.
11. Accordingly, the petitioners are directed to be released on bail on their furnishing personal bonds in the sum of Rs.25,000/- each with one surety each of the like amount to the satisfaction of the Court concerned. The petitioners shall not in any way attempt to intimidate the witnesses. They shall also not directly or indirectly attempt to tamper with the evidence. The petitioners shall not visit or attempt to visit the residence of the complainant and/or his family members. In fact, the petitioners shall not communicate with the complainant and/or his family members in any manner whatsoever.
12. It is made clear that observations made in this order shall not affect the trial.