Delhi District Court
State vs Anuj Mohta Etc on 10 May, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 27327/2016 CNR No. DLCT01-000066-2011
FIR No. 02/2011
U/Sec. 307/393/394/398/34 IPC
P.S. Bara Hindu Rao
STATE VERSUS ANUJ MOHTA & ORS.
(i) SC No. of the case : 27327/2016
(ii) Date of commission of offence : 05.01.2011
(iii) Name, parentage and address : (i) Anuj Mohta
of accused S/o Sh. Rattan Lal
R/o H.No. 5728, Subash
Mohalla, Gali No. 6
Gandhi Nagar, Delhi
Permanent Address:
Mohalla Kaluwas
P.S. Shri Dungergarh
Distt. Bikaner Rajasthan
(ii) Vinod Kumar Joshi
S/o Sh. Trilok Chand Joshi
R/o Mohalla Kaluwas
P.S. Shri Dungergarh
Distt. Bikaner, Rajasthan
(iii) Manohar Lal @
Manoj (Proceedings Abated)
S/o Sh. Sohan Lal
R/o Village Jandawali
Distt. Hanuman Garh
Rajasthan
SC No. 27327/2016
FIR No. 02/2011
State Vs. Anuj Mohta & Ors. Page 1 of 59
(iv) Zamil Khan
S/o Sh. Budha Khan
R/o Mohalla Adsarwas
P.S. Shri Dunger Garh
Distt. Bikaner, Rajasthan
(iv) Offence complained of : Under Sections
393/394/398/34 IPC
& Section 307/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : All accused person are
acquitted for the offence
u/Sec.307/393/394/398/34
IPC
Date of Institution : 10.03.2011
Date of Judgment reserved on : 04.05.2024
Date of Judgment : 10.05.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh. Mangtu Ram vide complaint dated 05.01.2011 which is Ex.PW5/A. The complainant is PW-5 who has stated in his complaint that he was working in the shop of Sh. Surender/PW-4 who is resident of Village Shri Dungargarh, Distt. Bikaner, Rajasthan. The shop is at Delhi at property no. 4432, Gali Bahuji, Pahari Dhiraj, Sadar Bazar, Delhi at first floor. At the same shop Sh. Dhanraj/PW-3, Sh. Kanhaiya Lal/PW-6 all resident of Shri Dungargarh, Rajasthan are working at the said shop at first floor in Delhi. Sh. Kanhaiya Lal is a commission agent. Around SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 2 of 59 11:15 AM in the morning when he reached at the shop then he had seen that Dhanraj in an injured condition was having a scuffle with a young boy. The Dhanraj had caught the said boy and the boy was getting away from the clutches of said Dhanraj. The complainant/PW-5 took PW-3 out of the shop and closed the shutter of the shop. Thereafter the complainant had raised noise for help. In the meanwhile Kanhaiya Lal had also reached there and a neighbour Shyam Sunder Sharma who is resident of district Churu, Rajasthan had also reached there. Sh. Ajit resident of Bikaner, Rajasthan had also reached there. Then they had opened the shutter of the shop and caught the young boy who had disclosed his name as accused Anuj Mohta resident of Gandhi Nagar, Delhi and who was permanent resident of Tehsil Kaluvas, Shri Dungargarh, district Bikaner, Rajasthan. PW-3 Sh. Dhanraj had told that the accused Anuj Mohta had visited at the shop with two other boys.
Accused Anuj Mohta after entering the shop had hit the PW-3 with knife on the neck. The other boys had countrymade pistol with them. Both of them had pointed out pistol towards PW-3. The PW-3 had raised noise and caught the accused Anuj Mohta on which the other two boys after lifting knife from the spot ran away with the countrymade pistol. One Sh. Tulsiram after hearing the noise had reached at the spot and the injured PW-3 was taken to St. Stephen hospital by him. During such scuffle accused Anuj Mohta had also received injuries. DD no. 18A dated 05.01.2011 was recorded in this respect at 3:20 PM on which FIR was registered at PS Bara Hindu Rao vide no. 02/2011 under Section 307/34 IPC. PW-20 retired ASI Sh. Sukhdev Singh with Ct. Ramesh had reached at the hospital and recorded the statement of PW-3 Dhanraj and he had also recorded complaint of Sh. Mangtu Ram vide Ex.PW5/A. SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 3 of 59 Thereafter PW-20/ ASI Sh. Sukhdev Singh had reached at the spot and called the crime team. He made endorsement on the complaint vide Ex.PW20/B and sent Ct. Ramesh to PS for registration of FIR. The site plan Ex.PW5/G was prepared and he had seized 16 slips under the mattress from the shop vide seizure memo Ex.PW5/C. He had also seized blood stained sheets, blood stained white colour pillow, blood stained mattress with one piece of cotton mattress vide Ex.PW5/D. Then the PW-20 had arrested accused Anuj Mohta produced by complainant Sh. Mangtu Ram/PW-5 vide Ex.PW5/E. The disclosure statement of accused is Ex.PW20/C. The blood stained clothes of the accused were seized vide Ex.PW5/B. Thereafter investigation of the case was assigned on 06.01.2011 to Insp. Satish Bhardwaj/PW-14.
2. PW-14 had arrested accused no. 2 Vinod Joshi on information of secret informer from forest area. They went to forest area in private taxi. His disclosure statement was recorded vide Ex. PW2/A. During such process HC Narayan Singh and Ct. Suresh were present with him on 13.02.2011. PW-14 with SI Parmod Kumar, SI Rohit Bhardwaj, HC Narayan Singh, Ct. Suresh with accused Vinod Joshi went to Bikaner in search of accused no. 3 Manoj @ Manohar Lal. Accused Vinod Joshi took to his house from where mobile phone make Nokia X5 and three SIM cards were recovered from his house which were seized vide memo Ex.PW2/E. At village Jhandewali, district Hanumangarh accused Manohar Lal was arrested at the instance of accused Vinod Joshi vide memo Ex.PW2/G from whom one mobile phone was seized with two SIM cards vide memo Ex.PW2/K. SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 4 of 59
3. PW-21 had investigated the case and went to Shri Dungargarh, Rajasthan on 07.04.2011 in search of accused Zamil Khan. The process under Section 82 Cr. PC was pasted at the door of the house of the accused. Accused Zamil Khan was arrested by Rajasthan police and who was formally arrested in this case vide Ex.PW19/A after issuance of production warrant. The disclosure statement of accused Zamil Khan is Ex.PW13/A. No weapon of offence could be recovered from the accused. PW-21 had prepared supplementary chargesheet and filed the same.
4. PW-23 on 11.02.2011 had joined the investigation alongwith Insp. Satish Bhardwaj, Ct. Suresh and HC Narayan Singh. They had taken assistance of local police. With the assistance of secret informer the accused was arrested sitting in a jungle at Dhulia road when the police team was returning to PS Dungargarh. On 15.02.2011 investigation of the case was assigned to PW-23. He had recorded the disclosure statement of accused Manoj vide Ex.PW2/F. Accused Manoj had refused to take part in TIP proceedings. The victim Dhanraj had identified the accused in the Court premises.
5. After investigation chargesheet was filed before the present Court against four accused. The accused person were summoned.
6. The charge against accused no. 1 Anuj Mohta, accused no. 2 Vinod Kumar Joshi and accused no. 3 Manohar Lal @ Manoj was framed on 19.03.2011 under Section 393/394/398/34 IPC and under Section 307/34 IPC. The case against accused no. 3 Manohar Lal @ SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 5 of 59 Manoj has already stood abated vide order dated 19.04.2022. The charge was given to accused Zamil under Sections 393/394/398 r/w Section 34 IPC on 06.08.2011 in the supplementary chargesheet in which PW-1 HC Narain Singh, PW-2 Sh. Dhanraj, PW-3 Sh. Surender Kumar Swami, PW-4 Sh. Mangtu Ram and the evidence was recorded.
7. The prosecution had examined PW-1 to PW-23 and thereafter statement of accused person were recorded under Section 313 Cr. PC on 17.08.2015. The accused person preferred to lead DE. The accused Anuj Mohta, Vinod Kumar and Manohar Lal could not produce evidence in defence despite grant of opportunity. On their oral statement before the Court that they do not want to examine witness in their defence the DE was closed vide order dated 09.09.2015. Accused Zamil Khan has also gave his oral statement before the Court that he does not want to lead evidence in defence on which DE on behalf of accused Zamil Khan was closed vide order dated 22.09.2015. Vide order dated 30.07.2016 accused no. 1 Anuj Mohta was allowed to cross-examine PW-1 on his application under Section 311 Cr. PC which was allowed vide order dated 30.07.2016. Thereafter, on 03.10.2023 additional Statement of Accused of accused no. 1, 2 and 4 were recorded separately and accused person had preferred not to lead evidence in defence. However, on the request of accused, DE stands closed by the order of the Court vide order dated 03.10.2023. Hence no DE was led by any of the accused person.
8. Final arguments are heard on behalf of both the parties and record perused.
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 6 of 598.1 Ld. Counsel for accused no. 1 had relied on following citations:
(i) Kansa Behera vs. State of Orissa (1987) 3 SCC 480 at para no. 12.
(ii) Tomaso Bruno & Anr. vs. State of Uttar Pradesh (2015) 7 SCC 178 at para no. 26, 27 and 28.
(iii) Alla China Apparao & Ors. vs. State of A.P. (2002) 8 SCC 440 at para no. 9.
(iv) Ankush Maruti Shinde & Ors. vs. State of Maharashtra (2019) 15 SCC 470 at para no. 10.1, 10.2 and 12.
(v) Panchram vs. State of Chhatisgarh & Anr. 2023 SCC Online SC 394 at para no. 8 and 9.
9. The prosecution has to prove that the accused has intention to commit murder and the act done by the accused. The relevant citation in this regard is The State of Madhya Pradesh Vs. Kanha @ Omprakash on 4th February, 2019 Criminal Appeal No. 1589 of 2018 (Arising out of Special Leave Petition (CRL) No. 1433 of 2013) from Hon'ble Supreme Court of India. The relevant para of which is reproduced hereasunder:
10 Section 307 of the Penal Code reads thus:
"307.Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.--When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
Illustrations SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 7 of 59
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.
(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section." The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". The second part of Section 307, which carries a heavier punishment, refers to hurt‟ caused in pursuance of such an „act‟. 11 Several judgements of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v Balram Bama Patil1, this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted:
"9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." (Emphasis SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 8 of 59 supplied) This position in law was followed by subsequent benches of this Court. In State of M P v Saleem2, this Court held thus: (1983) 2 SCC 28 (2005) 5 SCC 554 "13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted.
The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." (Emphasis supplied) In Jage Ram v State of Haryana3, this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:
"12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish
(i) the intention to commit murder; and
(ii) the act done by the accused.
The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc." The above judgements of this Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained (2015) 11 SCC 366 from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.
Xxxxxxxxxx 16 The evidence establishes that the injuries were caused by a fire-
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 9 of 59arm. The multiplicity of wounds indicates that the respondent fired at the injured more than once. The fact that hurt has been caused by the respondent is sufficiently proven. The lack of forensic evidence to prove grievous or a life-threatening injury cannot be a basis to hold that Section 307 is inapplicable. This proposition of law has been elucidated by a two-judge bench of this Court in Pasupuleti Siva Ramakrishna Rao v State of Andhra Pradesh4 :
"18. There is no merit in the contention that the statement of medical officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this section since the act resulted in Injury 5 which is a ligature mark of 34 cm × 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes "hurt". It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him that he should die. We also do not find any merit in the contention on behalf of the accused that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thums up bottle and a telephone wire used, as weapons.
That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused."
(Emphasis supplied) 17 In the present case, the nature of the injuries shows that there were eleven punctured wounds. The weapon of offence was a firearm. The circumstances of the case clearly indicate that there was an intention to murder. The presence of 11 punctured and bleeding wounds as well as the use of a fire arm leave no doubt that there was an intention to murder. Thus, the second part of Section 307 of the Penal Code is attracted in the present case. The judgement of the High Court overlooks material parts of the evidence and suffers from perversity. (2014) 5 SCC 369 18 Hence, we set aside the judgement of the High Court and restore the order of conviction by the Trial court under Section 307 of the Penal Code as well as the sentence awarded of rigorous imprisonment of 3 years and a fine of Rs. 1000. xxxxxxxxxxx
10. The Hon'ble Supreme Court of India in case titled State of SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 10 of 59 Maharashtra vs. Kashirao & Ors on 27 August, 2003 Case No. Appeal (Crl.) 124 of 2003 has laid down essential ingredients required to be proved in case of an offence under Section 307 IPC. It was held that the offence under Section 307 IPC has all the ingredients of the offence of murder except death of the victim. It is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assault, the weapon used are relevant factors. The circumstances under which the injury was caused, the manner in which the injury was inflicted, whether the offence occurred out of a sudden quarrel, whether the injuries were caused voluntarily, the injuries caused on the victim were on vital or non-vital organs, whether the plan was premediated to inflict the injury are also relevant factors. These are few of the ingredients among others and has to be looked into according to the facts and circumstances of the case. The relevant para are reproduced hereasunder:
xxxxxxxxxxxxx This position has been elaborately stated by this Court in Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381). Above being the position in law, when the facts are applied it becomes clear that all the accused person are liable in terms of Section 149 IPC. Looking at the nature of the injuries, weapons used and the manner of assaults, there was no reason to apply Section 326 IPC in case of accused-respondent No.1 alone. The trial Court had rightly convicted the accused persons under Section 302 IPC. The gruesome nature of the attack is amply demonstrated by the injuries noticed on the body of the deceased. One other aspect which was emphasized was that when prosecution version accepted PW-1 to be intended victim, Section 149 IPC cannot be invoked for deceased's murder. This plea has no legal foundation, when logic of Section 301 IPC is applied. Same reads as follows:
"Section 301- Culpable homicide by causing death of person other than person whose death was intended- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends or knows himself to be SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 11 of 59 likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."
The provision is founded on a doctrine called by Hale and Foster, a transfer of malice. Others describe it as a transmigration of motive. Coke calls it coupling the event with the intention and the end with the cause. If the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out.
Though Section 149 IPC may not in a given case apply to a case covered by Section 301, it would depend upon the factual background involved. No hard and fast rule of universal application can be invoked. In the facts of present case, as adumbrated supra, the essential ingredients of Section 149 have been amply established. Though initially the malice was focused on PW-1, the fact that all the accused chased and assaulted the deceased is a case of transfer of malice. The same was again pursued by coming back and attacking PW-1. So far as the assaults on PW-1 is concerned, the nature of the assaults and the injuries found clearly bring in application of Section 307 IPC. The trial Court was therefore justified in convicting accused- respondent No.1 under Section 307 IPC.
The essential ingredients required to be proved in the case of an offence under Section 307 are:-
(i) That the death of a human being was attempted;
(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;
(iii That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as;
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b)such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. In offence under Section 307 all the ingredients of offence of murder are present except the death of the victim. For the application of Section 307 it is not necessary that the injury SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 12 of 59 capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained alteration of conviction notwithstanding no modification of sentence need be made. It is true that when two views are possible and if one view has been adopted by the Court to either acquit the accused or to apply a different provision of law, interference should not be made but when the judgment suffers from legal infirmities and application of legal position to the factual scenario is unsustainable, interference is not only necessary but also highly desirable. The appeal deserves to be allowed. In the ultimate, the judgment of the High Court is set aside and that of the trial Court is restored. The respondents shall surrender to custody and serve out the balance sentence. xxxxxxxxxxxxxxxx
11. Hence the first ingredient the prosecution has to prove is death of a human being was attempted. Where there is no intention to cause bodily injuries sufficient to cause death to the victim or had no knowledge that injury inflicted by him would be fatal then in such case even when injury was caused voluntarily by a sharp weapon the accused could not be held guilty under Section 307 IPC but under Section 326 IPC. It was so laid down in case titled Pritam Chauhan vs. State (Govt. of NCT of Delhi) in Crl. Appeal 648/2001 decided on 24.10.2013 from Hon'ble High Court of Delhi at para no. 6 and 7 which are reproduced hereasunder:
6. Ocular and medical evidence are not at variance. PW-1 (Dr.Sudha Kanojia), CMO, Holy Family Hospital examined Sunder on 18.05.1999 vide MLC (Ex.PW-1/A) and noticed multiple lacerated wounds on the body. PW-2 (Dr. Naresh Chander Gaur), Orthopedics Surgeon found two wounds at the back of left fore-arm 9 X 5 c.m. over the middle 1/3rd and 6 X 4 c.m. distal 1/3rd left fore arm with deep extensive damage to most of the muscles and the back of left forearm. Another wound 4 X 1 c.m. on the palm of right hand was found. The patient underwent operation on 19.05.1999 and remained in hospital for treatment till 24.05.1999.
In 313 statement, the appellant did not give plausible explanation to the incriminating circumstances proved against him. Non-recovery of crime weapon is not fatal as injuries were caused with 'sharp weapon'. The Trial Court after considering the SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 13 of 59 rival contentions of the parties concluded that the appellant was the author of the injuries. The findings are based upon proper appreciation of evidence and need no interference. The prosecution, however, could not establish commission of offence under Section 307 IPC. The injuries caused to the victim were not on vital organs. The crime weapon was an ordinary vegetable knife. There was no pre-plan or meditation to inflict injuries to the victim. Prior to the occurrence, the victim and the appellant familiar with each other were together playing cricket without any confrontation whatsoever. Only on their way back, a child aged 8 or 10 years unexpectedly came from the opposite direction and the appellant slapped him. The complainant's interference to rescue the child annoyed him and he in a sudden fit of rage inflicted injuries to the victim after fetching a knife from his house. To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. It is sufficient to justify a conviction under Section 307 IPC if there is present an intent coupled with some overt act in execution thereof. The nature of weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and size of the injuries, the parts of the body of the victim selected for causing injuries and the severity of the blow or blows are vital factors that can be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempt of murder. The Section may apply even if no hurt is caused. The causing of hurt is merely an aggravating circumstance. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC.
7. Apparently, the appellant had no intention to cause bodily injuries sufficient to cause death to the victim or had the knowledge that injuries inflicted by him could be fatal. The prosecution was nevertheless able to establish that injuries were caused voluntarily by the appellant with a sharp weapon and thus he can be held guilty for committing offence under Section 326 IPC. The conviction is altered from Section 307 to Section 326 IPC.
12. The first ingredient the prosecution has to be proved that death of human being was attempted by the accused. It is deposed by PW-1 that on 05.01.2011 when he had reached at a distance of 100 mtr. from the house of the victim then he had heard noise that 5-7 boys/person were SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 14 of 59 standing. The shutter of the shop was down from inside and he could hear the noise. When the shutter was opened then he had seen two boys scuffling with each other. The boy Dhanraj was bleeding profusely who had stab injuries on his neck. They had taken Dhanraj out of the shop and put the shutter down. The other boy had remained inside the shop. After 45 minutes police had reached there and had opened the shutter and police had apprehended the accused Anuj Mohta. PW-1 has correctly identified the accused Anuj Mohta. The boy Dhanraj has deposed as PW-
3. He has deposed that he came to the shop with Kanhaiya Lal/PW-6 around 11:00 AM. He had asked Kanhaiya Lal to purchase Agarbatti and match box from the market. PW-3 was sitting at mattress when three boys had entered the shop and asked for owner of the shop. PW-3 had told the boys that the owner is in Rajasthan. The boy asked PW-3 that what is with him on which PW-3 had replied that he has nothing with him. One boy had knife and two boys had countrymade pistol. They started beating PW-3 on which PW-3 had raised alarm and protested. On this the boy who had knife had attacked on front side of his neck and scratched face and eyes of PW-3 with his nails. PW-3 had raised alarm. Sound of someone coming to the shop was heard by the boy on which the two boys having countrymade pistol ran away after picking the knife. PW-3 has deposed that the name of other two boys was revealed to him by the police as accused Zamil and accused Manohar Lal and PW-3 has correctly identified both the said accused who were carrying countrymade pistol. However, he cannot specify that who among them is Zamil and who is Manohar Lal. Accused Anuj Mohta was also identified by PW-3 in the Court who had attacked PW-3 with knife. Ld. APP has declared the witness hostile and in cross-examination it is deposed by SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 15 of 59 PW-3 that he had not stated to the police that accused Vinod Joshi was seen by him in the gali at 10:00 AM on the day of incident. He did not told police that accused Vinod Joshi was known to him. He was confronted with his statement Ex.PW3/A from A to A1 where it is so recorded.
13. PW-20 has deposed that on 05.01.2011 he had received information around 11:15 AM from duty officer who in turn had received information from St. Stephen hospital, Delhi vide DD No. 15A that one Sh. Dhanraj/PW-3 was injured by some sharp object by unknown person who was admitted in the hospital. The intimation was given through telephone. The MLC no. 06/11 Ex. PW16/A was registered in the matter. The investigation was handed over to SI Sukhdev Singh who with Ct. Ramesh went to the hospital. In the MLC it is recorded that patient Sh. Dhanraj is unfit for statement at 12:30 PM. The patient was not fit to give statement. The patient was recorded fit for giving statement at 3:45 PM on 05.0.2011. Hence the statement/complaint of the patient PW-3 could be recorded by the investigating agency/IO only after 3:55 AM on 05.01.2011. The FIR Ex.PW15/B in the matter was registered where date of recording of FIR is mentioned as 05.01.2011. The FIR mentions entry no. 18A of general diary reference at time of 3:20 PM. The information was received at PS at 3:20 PM. The time of commission of offence is 11:15 AM. Hence it is difficult to comprehend that when the patient was declared fit for statement at 3:55 AM by the doctor in the MLC Ex.PW16/A then how the FIR could be registered prior to such time when the patient was not fit for statement. Hence the FIR appears to be ante dated than to the time when the patient was declared fit for SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 16 of 59 statement. This creates doubt in correct preparation of FIR at correct time. This gives impression that there was possibility of improvement of facts in such non-recording of public documents in proper time. The intimation from St. Stephen hospital was given by Dr. Jak.
14. Now it is to be seen that Dr. Jak had given intimation at the police station around 1:00 PM on 05.01.2011 and whether such intimation should have been given by any prosecution witness earlier to such time. PW-1 Sh. Ajit has deposed that on 05.01.2011 between 10:30 AM to 11:00 AM he was going for his work. When he had reached 100 mtr. away from his house then he heard noise and saw 5-7 boys standing. When he reached at the spot then he had found that shutter of the shop was down and noise could be heard. The shutter was opened by mohalla people and they saw two boys scuffling with each other. To the contrary PW-5 has deposed that shutter of the shop was open which was closed by him and Kanhaiya Lal/PW-6 after taking out PW-3. Owner of the said shop had also reached there and PW-3 was bleeding profusely having received stabbed injuries on his neck. To the contrary the owner is PW-4 who was present at Rajasthan at relevant time. Police had reached at the spot after 45 minutes and before reaching of the police Dhanraj/PW-3 was already taken to hospital by his uncle. The MLC records that Tulsi Ram/PW-7 had taken the injured/PW-3 to the hospital. The MLC records injuries on anterior part of neck which is having incise wound about 10cm x 3 cm x 2cm. As per deposition of PW-1 the police must have reached at the spot by 11:45 AM. Therefore there was no reason with the police for not intimating the incident at the police station prior in time than at the time at 1:00 PM when Dr. Jak had given such intimation at SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 17 of 59 the police station. Hence role of police during investigation is found doubtful.
15. Ld. Counsel for the accused has submitted that there is scope of manipulation in preparation of FIR and in the facts of the case. The IO has manipulated the facts. It is submitted that the FIR was not even sent before the ld. MM at the earliest in time. The FIR exhibited by the prosecution as Ex.PW15/B mentions receipt of copy of FIR on 06.01.2011 by one Mr. Anuj. Hence the FIR was received by the accused only and prosecution has not proved sending of copy of FIR at the earliest before ld. MM after its registration. It is further submitted that there is no clarity in the case of the prosecution that how the police had reached without intimation at the spot. Whereas the first intimation vide DD No. 15A was given by Dr. Jak from St. Stephen hospital around 1:00 PM. Another fact to be noted that PW-4 Sh. Surender Kumar Swami has deposed that on 05.01.2011 he had received a telephonic call from Mangtu Ram/PW-5 around 11:00 AM or 11:30 AM that some boys had quarrelled with Dhanraj at the shop and Dhanraj had been injured. PW-4 had deposed that Mangtu Ram and Dhanraj were employee at his shop. He had instructed Mangtu Ram to inform the police whereas the prosecution had not proved any such information to the police by Mangtu Ram. There was no reason with Mangtu Ram in not obeying directions of his employer in not reporting the matter to the police. Mangtu Ram/PW-5 had deposed that he reached at the shop at 10:30/10:45 AM and he had rescued PW-3 Dhanraj the injured from the accused Anuj Mohta and took the injured Dhanraj out of the shop. On his raising the noise people gathered at the spot. They had opened the shutter SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 18 of 59 and the boy inside was apprehended. Hence Mangtu Ram had not deposed that he had reported to the police. Mangtu Ram had deposed that someone had informed the police and in the meanwhile police had reached there. Mangtu Ram had not even deposed that he had informed his employer PW-4 Sh. Surender Kr. Swami whereas PW-4 had deposed that he had received information from Mangtu Ram. It is deposed as correct by PW-5 Mangtu Ram that Tulsi Ram/PW-7 had reached at the spot after 15-20 minutes after PW-5 had reached at the spot. PW-7 has turned hostile to the case of the prosecution. He reached at the spot between 10:30-10:45 AM. He had seen his nephew lying in injured condition in front of the shop and 20-25 persons were present there. PW- 7 had taken PW-3 Dhanraj in rickshaw to St. Stephen hospital and he had not seen any person in custody of public person. PW-15 ASI Vedwati had received information from hospital around 1:00 PM vide DD Ex.PW15/A and Ct. Ramesh came with Rukka at the police station at 3:20 PM. The endorsement on Rukka is Ex.PW15/C. It is admitted by PW-15 that there is overwriting in Rukka at portion X, Y, Z and she is not aware who had done the overwriting. At portion Z the overwriting is done by her without putting her initials. It took her 45 mins to record the FIR. PW-20 Sh. Sukhdev Singh had deposed that he alongwith Ct. Ramesh went to St. Stephen hospital after receipt of Ex.PW15/A where they met the injured. It is deposed by PW-20 in cross-examination dated 12.01.2015 that on 05.01.2011 he had received information at 11:15 AM from duty officer that the duty officer had received the information from St. Stephen hospital then he had left to St. Stephen hospital around 11:20 AM and within 20-25 mins he had reached at the hospital. The distance from police station to hospital is about 2 km. It is noted that the duty SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 19 of 59 officer has nowhere stated that she had received the information at police station at 11:15 AM. The duty officer/PW-15 has deposed that she had received the information from Dr. Jawa at 1:00 PM only. When the duty officer had received the information at 1:00 PM only then it was not possible for her to give the information to PW-20 around 11:15 AM. Further, when the distance between the police station and hospital is about 2 km then there is no reason with the police to reach at the hospital in 30-35 mins. According to PW-20 he had reached at the hospital at 12 PM. When PW-20 had reached the hospital at 12 PM then it is not clear that why he had not intimated this fact at police station instead of Dr. Jak at 1:00 PM. Hence the time at which the matter was reported to the police is prior to 1:00 PM who had not intimated it to the police station in due time. The incident had occurred at 11:00 AM and till 1:00 PM the information was not given at the police station which shows that in 2 hour a process of thinking was involved in the matter by the person present at the spot and there need to be caution in accepting the truthfulness of prosecution witness both police and public witness. PW-5 had not intimated the incident to the police despite direction from his employer to intimate so which creates doubt in his conduct if the incident had occurred in the manner in which PW-5 had narrated it. PW- 5 is the complainant in the case.
16. In complaint Ex.PW5/A it is stated by Mangtu Ram that the injured Dhanraj was scuffling with a boy and injured was bleeding profusely. The accused was caught by the injured Dhanraj. PW-5 had taken the injured Dhanraj out of the shop and closed the shutter of the shop from outside and accused remained inside at the shop. In the SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 20 of 59 meantime Kanhaiya Lal had also reached at the spot and a neighbour Shyam Sunder had also reached there after hearing the noise. Ajit had also reached at the spot. The accused was caught. After that Sh. Tulsi Ram had reached at the spot who had taken the victim Dhanraj to the hospital. In his examination-in-chief PW-5 had improved his version that one Tulsi Ram was the first person who had reached first at the spot and he alongwith Tulsi Ram had opened the shutter and apprehended the accused whereas Tulsi Ram had deposed that he had seen his nephew Dhanraj outside the shop lying in injured condition to whom he had taken to St. Stephen hospital. PW-5 had not identified the accused in the Court. The police had told the name of accused Anuj to PW-5. The PW-5 was declared hostile by the State.
17. It is deposed by PW-3 in his examination-in-chief that when the boy having knife had attacked him on front side of his neck and the said boy had also scratched his face with nails on which PW-3 started bleeding profusely. In MLC no scratch marks by nails are proved. PW-3 had raised alarm and sound was heard that someone was coming at the shop on which the two boys carrying pistol ran away after picking the knife which had fallen down when attack was made on PW-3. PW-3 caught the trouser of the boy/Anuj Mohta when he was trying to run away. In the meantime Kanhaiya Lal came to the shop and neighbours had also collected there. One Mangtu Ram who was also working had also reached there. The PW-3 was taken out of the shop and Mangtu Ram had closed the shutter of the shop. It is deposed by PW-3 that the name of other two boys was revealed to him by the police as Zamil and Manohar Lal. It is deposed by PW-3 in cross-examination that he was SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 21 of 59 saved from the attacker by Mangtu Ram and Kanhaiya Lal. It is admitted as correct that PW-3 had not seen the person before the incident who had attacked him. On such deposition the statement under Section 161 Cr. PC of PW-3 which is Ex.PW3/A is looked into which is dated 01.03.2011. In the said statement PW-3 is confronted with his statement from point A to A1 where it is recorded that there was another boy whose name was Vinod Joshi and the said Vinod Joshi was resident of Kaluwas and whom PW-3 recognised. The said boy was coming to the shop since last 2-3 days to meet PW-5 Mangtu Ram. He had also seen the accused Vinod Joshi outside the shop around 10 AM on 05.01.2011. Hence PW-3 is deposing in contradiction to his statement under Section 161 Cr. PC. Another fact to be noted is that PW-5 in his complaint Ex.PW5/A has not intimated to the police that he knew the accused Vinod Joshi or that accused Vinod Joshi was coming to Mangtu Ram since last two days or that Mangtu Ram and accused Vinod Joshi are coming from the same area situated at Rajasthan from Kaluwas. PW-3 has further deposed in his cross-examination by ld. APP for State that he had not stated to the police that accused Vinod Joshi was seen by him on the day of incident at 10 AM in the gali outside the shop or that Vinod Joshi was known to him. He had not stated to the police that accused Vinod Joshi and PW-3 are resident of Shri Dungargarh and 2-3 days prior to the incident Vinod Joshi came to meet Mangtu Ram. PW-3 could not identify accused Vinod Joshi in the Court. It is important to note that the witness joined by the prosecution are mainly either related to PW-3 or they are employee in the shop. Independent public witness were not joined despite availability.
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 22 of 5918. The PW-3 has deposed that there is no landline telephone at the said shop where the incident has occurred. To the contrary PW-5 had telephonic conversation with PW-4/owner regarding the incident. PW-22 in cross-examination at page 2 has deposed that one telephone instrument, one mobile charger, plastic container, tiffin, mayur jug, used clothes and an open carton containing bags, one bed rest was lying at the shop and no valuable articles were lying at the shop as shown in the photographs Ex.PW22/A1 to Ex.PW22/A12 negatives of which are Ex.PW22/B1 to Ex.PW22/B12. The photographs were developed by crime team in Government photolab. Hence it shows that telephone was available at the shop and PW-3 had ample time to inform the police about the incident after apprehension of the accused which was also directed by PW-4 to PW-5 Mangtu Ram to intimate the police immediately. Mangtu Ram had made a telephonic call between 11AM- 11:30 AM to PW-4 regarding the alleged offence in the shop. Neither PW-3 nor PW-5 made a telephone call to the police regarding the incident despite direction of PW-4 which could be made by them by 11:30 AM. Hence it shows that the witnesses are not coming out with truthful version of the facts that what had actually transpired on that day on the spot. There was no reason with PW-3 or PW-5 in not to intimate the police about the commission of offence. In fact PW-3 had reached at the hospital by 11:45 AM on 05.01.2011 which means that by 11:30 AM PW-3/the injured had also departed the spot and there was more than sufficient time with PW-5 to intimate the police which he has not preferred to do.
19. PW-5 has deposed that he had reached at the shop about 10:30 to SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 23 of 59 10:45 AM when he had seen PW-3 Dhanraj scuffling on mattress lying in the shop with accused Anuj Mohta. PW-3 had told PW-5 that the said boy Anuj Mohta the accused had hit him with some object. Hence PW-3 was not clear at that time that with which object he was hit by accused Anuj Mohta. No sketch of knife was prepared by police at the instance of PW-3 that what could be the size, shape and colour of such knife. The knife is also not recovered by the police. Now it has to be seen that whether this injury could be caused by knife at all or it could also be caused by any other object. PW-16 Dr. B.K. Jawa from St. Stephen hospital has deposed that he had not given any observation in respect of nature of injury. He did not prepare the discharge slip nor he had given any treatment mentioned in the discharge slip. The injury sustained by the patient could be caused by any sharp object and he cannot say that it could be caused by sharp stone. PW-17 Dr. Susan K.S, Senior Consultant from St. Stephen hospital has deposed that PW-3 was bleeding. She has also given nature of injury on MLC of PW-3 and opined that they are grievous. The MLC is signed by her at point X. In cross-examination it is admitted by PW-17 that the nature of injury suffered by PW-3 could have been caused by falling on sharp edged stone. In the MLC Ex.PW16/A in the history it is not recorded that the injury was caused by knife whereas it is recorded that it was caused by sharp edge weapon. From such recording of history it appears that PW-3 at the time of giving the history of the weapon he himself was not aware about the weapon used while such injury was caused. He has not stated that it was caused by a knife. Had he seen the knife falling down from the hands of accused Anuj Mohta then he must have stated so in MLC Ex.PW16/A at the first instance. Therefore it has become doubtful if the alleged other two SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 24 of 59 accused had picked up the knife from the spot and ran away more so when the prosecution witness PW-17 has deposed that the injury could have caused by falling on sharp edged stone. The prosecution has to bring on record that such kind of injury could be caused only by metallic knife. The injury by a stone would have broader width of abrasion on the skin than a knife however blunt the knife could be. There was no reason with PW-3 in not stating to doctor that the injury was caused by knife. In the MLC Ex.PW16/A it is recorded that the injury was caused by some unknown person whereas in his statement under Section 161 Cr. PC Ex.PW3/A dated 01.03.2011 PW-3 has specifically named accused Vinod Joshi whom he knows and the said accused was present at the time of incident. Hence there is doubt that if the injuries caused upon PW-3 is caused by a knife or a sharp edge stone. Further, the prosecution has failed to prove blood on mattress and clothes of PW-3 if they belong to PW-3. To such proof is produced on record. Nor blood is proved on clothes of accused Anuj Mohta which must be there on clothes if there was such physical scuffle on mattress with PW-3.
20. The site plan Ex.PW5/G was prepared at the instance of PW-5 Mangtu Ram and not at the instance of PW-3. The site plan shows that at point A knife injury was caused on PW-3. However PW-3 has deposed that the first person to reach at the shop was Kanhaiya Lal and immediately after him Mangtu Ram had reached there. PW-5 has deposed that he has rescued PW-3 Dhanraj and took him out of the shop and closed the shutter of the shop and he had raised noise. PW-6 Kanhaiya lal has deposed that when he returned at the shop after purchasing dhoop, Agarbatti and matchbox then he had seen inside the SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 25 of 59 shop that PW-3 was grappling with one boy. PW-3 was bleeding from his neck. Then PW-6 has raised alarm and public person gathered there after which Mangtu Ram reached there. Public person lowered down the shutter of the shop. The relative of Dhanraj, Sh. Tulsi Ram had reached there who had taken PW-3 to the hospital. The said boy is not identified by PW-6 in the Court by stating that the said boy was not present in the Court who was caught at the spot. The witness has declared hostile by the prosecution. PW-6 had denied that Mangtu Ram had closed the shutter of the shop and maintained that public person had closed the shutter of the shop. It is admitted as correct by PW-6 that he was the first person to reach the place of incident and he did not see any body coming out of the shop. Police had reached after 10 minutes of his reaching there. To the contrary PW-5 had deposed that he was the first person to reach at the shop when PW-3 was scuffling with accused Anuj Mohta on the mattress and PW-3 told him about the incident. PW-5 has deposed that he had rescued PW-3 and taken him out of the shop and closed the shutter of the shop. PW-7 has deposed that he had not seen any person in custody of those public person. He has taken his nephew Dhanraj in rickshaw to the hospital. PW-7 was declared hostile by the prosecution. It is deposed by PW-7 that he had not seen accused Anuj Mohta at the shop. Hence there are contradictions and improvements in the deposition of the prosecution witnesses that who had reached at shop at first place and who had rescued PW-3 Dhanraj.
21. Another fact to be noted is that as per FIR there were three boys whereas police had arrested four boys.
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 26 of 5922. PW-23 has deposed that accused Manoj had refused TIP on the ground that he belongs to the same village and the witness is known to him prior to the incident. The case against accused Manohar Lal @ Manoj was abated vide order dated 19.04.2022 who had expired on 15.01.2020.
23. It is to be noted that except accused Anuj Mohta none of the accused were caught at the spot. Other than this no prosecution witness had seen remaining accused at the spot at the time of commission of crime other than PW-3. PW-3 in cross-examination dated 17.01.2012 at page 3 could not identify accused Vinod Joshi. At page 2 he has deposed that he cannot specify that who is accused Zamil and accused Manohar Lal. He has deposed that he had not stated to the police that accused Vinod Joshi was seen by him on the date of incident around 10 AM. However PW-3 has correctly identified accused Anuj Mohta in the Court. There is no identification of remaining accused by the only eye witness PW-3 therefore it cannot be said that these are the accused person who made attack on PW-3 at his shop on 05.01.2011. There is no other connecting evidence of the remaining accused of the alleged offence of robbery or under Section 307 IPC. Accused Zamil Khan was produced on production warrant who was in custody in another case and whose one day PC remand was also obtained. Accused Vinod was arrested sitting in a jungle at Dhulia road on 11.02.2011. No recovery was effected from any of the accused person nor prosecution has established any link of the remaining accused with the alleged offence of robbery or attack on PW-3. Even the name of the other two boys was revealed to PW-3 by police as Zamil and Manohar Lal. No katta were SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 27 of 59 recovered from accused Zamil and Manohar Lal. When there were three accused then how fourth accused Vinod Joshi come into picture is not clear as he is not identified by any of the prosecution witness. PW-3 in cross-examination dated 17.01.2012 at page 3 has deposed that he cannot identify accused Vinod Joshi even if shown to him. At page 4 of the same cross-examination it is deposed by PW-3 he was saved from accused Anuj Mohta by PW-5 Mangtu Ram and Kanhaiya Lal. PW-5 at page 2 of his examination dated 15.03.2012 has deposed that he does not remember if he had seen accused Anuj Mohta on the said date. PW-6 at page 2 of his examination has deposed that before taking out PW-3 from the shop the shutter was down and there is contradiction in the statement of witness to the fact that when PW-6 Kanhaiya Lal was present at the spot and shutter was down then how they could see that accused Anuj Mohta and PW-3 were scuffling with each other. PW-5 at page 2 of his cross-examination dated 15.03.2012 by ld. APP for the State has deposed that he does not remember if he had seen the accused Anuj Mohta on the day of incident and that he had not seen his face. PW-3 at page 2 of his cross-examination dated 22.05.2015 has deposed that he had mobile phone at that time. Despite having mobile phone he had not intimated the police regarding the alleged offence nor anybody else had intimated the police. It is noted that the PW-3 has not stated to the doctor in MLC that by what article he was hit by the accused. It is mentioned as sharp edged weapon and knife was not named in MLC. No sketch of knife or colour of knife was described. It could have been described if PW-3 has seen such knife. According to PW-3 the knife had fallen in front of him and the knife was picked by another accused person in front of him. Then it cannot be said that the knife and its measurement could not be seen by SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 28 of 59 PW-3. The doctor has opined that the nature of injury was grievous injury. However under which Clause of Section 320 IPC this injury falls is not proved by the prosecution. In any case it is not an injury which fall under first to seven clauses described under Section 320 IPC. If it comes under Clause eighthly then there is no opinion of doctor in this regard that this injury was endangered to life or that the PW-3 was in severe bodily pain for a period of 20 days or unable to pursue his pursuits for 20 days. In absence of medical evidence in this regard it cannot be said that the nature of injury was grievous. Other than this Ex.PW18/A mentions deposit of clothes seized of accused on 05.01.2011. Such deposit was made in the store whereas the clothes of Anuj Mohta were seized on 07.01.2011 vide Ex.PW5/B the seizure memo. The FIR was not registered in due time. There are material improvement in deposition of witness PW-3 regarding the article with which injury was caused on him. Police had reached at the spot within 10 minutes from 11 AM. However no intimation was given to the police station either by public person or police person and only at 1 PM the doctor had given intimation. Ample time was available with witnesses to make improvement in their stories which is seen above in their deposition and discussed above. It appears that PW-3 is not coming with truthful version of the manner in which the alleged offence was committed or issue had begun. In these circumstance of the case it is doubtful that injury was caused upon PW-3 by knife. Doctor has opined that the injury could be caused by stone. Nature of injury by stone and knife have to be materially different. In these circumstances of the case it is held that the prosecution has failed to prove the manner in which the injury was caused upon PW-3 by Anuj Mohta though it was proved that accused Anuj Mohta was present at the SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 29 of 59 spot.
24. It is the case of the prosecution that only accused Anuj Mohta had stabbed PW-3 by knife and sooner the remaining accused had ran away from the spot. The knife was also taken out suddenly which shows that other accused were not aware about such taking out of knife by accused Anuj or if he was going to stab PW-3. Hence culpability of the other accused in the offence under Section 307 IPC is not seen. However for the reasons discussed above it is found that prosecution has failed to prove if accused Anuj Mohta had hit the PW-3 with a knife. The prosecution had failed to prove existence of such knife by proper specification even if recovery was not made. There is unexplained delay in recording of FIR and material improvements made by the witnesses from time to time in their depositions. The investigation by police is also not found fair and beyond doubt in view of the fact that police must have reached at the spot by 11 AM and they did not report the matter for recording of FIR. PW-1 has deposed that police had reached after 45 mins where at other place in evidence it is found that police had reached at the spot at 11 AM. There are embellishment and inconsistencies in the statement of witnesses as discussed above due to which it is held that the prosecution has failed to prove if the accused person had committed offence under Section 307 IPC and therefore all the accused person stands acquitted of the above offence.
25. The ingredient which has to be proved by the prosecution is that the accused has committed theft. Further it is doubtful that robbery was allegedly committed in the said shop keeping in view the fact that PW-5 SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 30 of 59 knew accused Vinod Joshi before hand and he had not stated so to the police. Even accused Vinod Joshi was coming at the said shop since last two days and it cannot be said that he is not aware that what was lying in the shop. As per deposition of prosecution witness no article was lying in the shop of good material value.
26. Further, if the accused already knew that no valuable good was lying at the shop then why they will come in the shop armed with knife or countrymade pistol knowing that there is no valuable good available. The above facts creates doubt in the story of prosecution that the accused person had visited there for the purpose of commission of robbery. There could be any other purpose but not the robbery in respect of which the prosecution witness are not coming truthfully on record. The necessary citation to the offence under Section 393/394/398/34 IPC are reproduced hereasunder:
It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 31 of 59 respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 32 of 59 punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 33 of 59 with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'.
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 34 of 59Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC
- 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person:
vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 35 of 59 sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section 397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 36 of 59 law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253]."
27. The prosecution has to prove that valuable articles were lying in the shop where the alleged offence of robbery was committed. It is deposed by PW-3 that the shop in which he was working is shop of cosmetics and SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 37 of 59 toys. Further in cross-examination dated 22.05.2015 it is deposed by PW- 3 that his duty was to collect payment from party and give it further to party. It is admitted as correct that in shop no. 8 no article was kept. It is further admitted as correct that no delivery of goods was done at shop no. 8 and only samples were shown to the parties. It is admitted as correct that no cash or jewellery was kept in the said shop. It is admitted as correct that no robbery had taken place in the shop. PW-4 who was running the shop is not even aware about the name of landlord from whom the shop was taken on rent and it is deposed that the shop was taken on rent by PW-5 Mangtu Ram. PW-5 is employee of PW-4 who has not deposed that he had taken shop on rent. PW-5 has deposed that accused Vinod Joshi came to him two days prior to the incident and father of the accused was known well to him and his family. Therefore accused Vinod Joshi must be knowing that what was lying in the shop. PW-12 has deposed that only one bed having mattress was lying at the shop. It was not a shop but it was a office. In cross-examination of PW- 22 he has deposed that no valuable item was lying in the shop except one mattress, telephone instrument, one mobile charger, tiffin and mayur jug etc. In such view of the matter when no such valuable was lying in the shop then it is difficult to believe that the accused person who had already visited at the shop namely Vinod Joshi and through him other accused knew that no valuable was lying in the shop even then they would come armed with two countrymade revolver and one knife to commit dacoity. Hence it could not be said that if accused had at all visited the said shop for the purpose of dacoity knowing well that no valuable are lying in the shop.
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 38 of 5928. Hence the prosecution has failed to prove that accused person had committed any theft which had culminated into dacoity at any point of time. As far as injuries allegedly committed on PW-3 by accused Anuj will not make the remaining accused liable at all for the reason that as per deposition of PW-3 the accused Anuj Mohta had caused injuries. The other accused had not exhorted to hit PW-3 with knife. Therefore the other accused could not know about such taking out of knife by accused Anuj and causing of injury on PW-3. It is settled law that for the purpose of Section 393/394/398 IPC only the offender who committed robbery and voluntarily caused hurt would be liable. It envisages individual liability and not constructive liability and therefore the above offence are not attracted against any of the accused except accused Anuj Mohta as per the own case of the prosecution. However it is already discussed above that prosecution has failed to prove that if knife was used at all during such commission of offence. There is unexplained delay in recording of FIR in this matter by the prosecution and it goes to the root of the case of the prosecution. The necessary citation in this regard titled Jasbir Singh vs. State is reproduced hereasunder:
Hon'ble High Court of Delhi in case titled Jasbir Singh vs State on 12 May, 2022 in CRL. A. 95/2007 has held as under:
16. At this juncture, it is also argued by learned counsel for the appellant that the FIR was lodged by the complainant/father of the prosecutrix informing that on 25th September, 1998, his daughter has gone to purchase fruits and vegetables but she had not return.
He searched in his relations but could not come to know about her whereabouts. This information was given to the police on 28th September, 1998 i.e. after two days and one night. There was no explanation of the delay in lodging of the FIR of missing of his own daughter. Therefore, the said conduct of the complainant creates serious doubt in the story of the prosecution. Delay in lodging in FIR without any explanation.
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 39 of 5924. In the instant case, the FIR was lodged by the complainant after an inordinate and unexplained delay of three days at Police Station, which renders the FIR in this case wholly unreliable. The delay in lodging the FIR corrodes the credibility of the prosecution story. The Hon'ble Supreme Court in several cases held that delay in loading the FIR creates a doubt, if the said delay is not properly explained.
25. In Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393, the Supreme Court, emphasising the necessity of explaining the delay in lodging FIR, has held as follows:
"12... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or Signature concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained...."
26. In Meharaj Singh &Ors. v. State of U. P. &Ors, (1994) 5 SCC 188 the Supreme Court has observed:
"12. ... The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 40 of 59 external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P.C. is aimed at serving a statutory Signature function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR..."
27. In Satpal Singh v. State of Haryana, (2010) 8 SCC 714 the Supreme Court has observed:
"15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [Vide: State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582]"
28. The Hon'ble Supreme Court in Kishan Singh Vs. Gurpal Singh, (2010) 8 SCC 775 with regard to the effect of delay in lodging FIR has held as under:
"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 41 of 59 such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide :Chandrapal Singh &Ors. Vs. Maharaj Singh &Anr., AIR 1982 SC 1238; State of Haryana &Ors. Vs. Ch. Bhajan Lal &Ors., AIR 1992 SC 604; G. Sagar Suri &Anr. Vs. State of U.P. &Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. &Ors., (2008) 12 SCC 531).
29. In Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC 379, Hon'ble Supreme Court has held that extraordinary delay in lodging of FIR raises grave doubt regarding the truthfulness of allegations. The Hon'ble Court held as under:
"12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."
30. Relying upon the judgment of Jai Prakash Singh (supra), in Manoj Kumar Sharma and others Vs. State of Chhattisgarh and another, (2016) 9 SCC 1, Hon'ble Supreme Court has held that delay in lodging FIR often results in embellishment, which is a creature of an afterthought and on account of delay, FIR not only gets bereft of advantage of spontaneity, danger of coloured version or exaggerated story being introduced in FIR, creeps in. It SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 42 of 59 further held that extraordinary delay in lodging FIR raises grave doubt about the truthfulness of allegations made therein.
29. The finding arrived under Section 307 IPC above are held equally applicable in the findings under Section 34 IPC and for the sake of brevity the same are not repeated herein. It was held in case titled Man Singh & Anr vs State of Madhya Pradesh in Cr. A No.312 of 2011 dated 27.04.2022 from Hon'ble High Court of Madhya Pradesh at relevant para that Section 34 IPC does not create a distinct offence. It was laid down that Section 34 does not create a distinct offence but it is a principle of constructive liability. The relevant para are reproduced as hereunder:
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent.'' (23) So far as next contention of the counsel for the appellants that no conviction for instigation or exhortation can be recorded against the accused appellant Man Singh alleged to have exhorted the actual assailant is concerned, in the case at hand, there is direct and positive evidence that at the instigation of appellant accused Man Singh, appellant- accused Narendra fired at the deceased.
Therefore, in the light of unanimous and categorical statements of prosecution witnesses, the contention of counsel for the appellants is not acceptable. The evidence of witnesses relating to exhortation is clear, cogent and reliable. In view whereof, it cannot be said that appellant accused Man Singh was not sharing common intention with appellant accused Narendra Singh in commission of murder of deceased in question. In this regard, a reliance can be placed on the decision of Rajasthan High Court in the matter of Bhoma Ram Vs. State of Rajasthan 1987 WLN UC 128 wherein, it has been held as under:-
''10. Accused Laxmi Chand and Ram Chandra were convicted with the aid of Sections 34 and 109 IPC. Section 34 IPC does not create a distinct offence. It only lays down the principle of joint criminal liability on the ground that where two or more persons intentionally commit an offence jointly, it is just the same thing as if each of them had done it individually, The existence of common intention is largely inferential. Surrounding circumstances, conduct of the culprits preceding the commission of the offence during its commission and subsequent to commission furnish the materials from SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 43 of 59 which inference is to be drawn as to whether the offence was committed in furtherance of the common intention of the culprits. The words spoken by the culprits, the instigation, exhortation and encouragement given by them before and during the commission of the crime are the usual factors from which the inference is to be drawn whether the crime was the out-come of the common intention of the all and the common intention of one was shared by the others. For the applicability of Section 34 IPC, the intention to commit the offence must be common to all the culprits and it must be shared by each of them. In Jai Narain v. State of Bihar, it was observed by their Lordships in para 10 of the judgment that where an offence is committed on the instigation of one of the culprits, that culprit giving the instigation can be safely convicted for the main offence with the aid of Section 34, IPC.
11 Section 109, IPC defines abetment.
Among other things, it speaks that a person abets the doing of a thing, who instigates any person to do that thing. Instigation in law, thus, indicates some active suggestion such as command, order exhortation etc. to the commission of the offence. It is a direct incitement by one to the other to commit the crime. Exhortation by one culprit to the other to commit the offence, constitutes abetment.
12. In the instant case, the evidence of the eye witnesses establishes that accused Laxmi Chand and Ram Chandra said to accused Bhoma Ram, "Here is Milki's servant Madan. Shoot him." The words "shoot him" are clearly indicative that they wanted the deceased to be killed and finished for ever. The pistol was fired by accused Bhoma Ram only after the aforesaid direction, order command or exhortation was given to him by accused Laxmi Chand and Ram Chandra.
13. It was argued by Mr. Doongarsingh that the evidence as regard to the verbal exhortation should not be readily believed. Oral evidence relating to exhortation is of weak type and the Court should be reluctant to accept that evidence. In support of his contention, Mr. Doongar Singh placed reliance on Jainual Haque v. State of Bihar . It was observed by their Lordships that the evidence of exhortation is by nature weak and conviction for abetment should not be recorded without clear, cogent and reliable evidence in this respect.'' (24) We shall also go back into the history to understand Section 34 of IPC as it stood at the inception and as it exists now. Generally speaking, Section 34 IPC provides an acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. (25) In the recent decision of Jasdeep Singh alias Jassu vs. State of SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 44 of 59 Punjab decided on 7th January, 2022 in Criminal Appeal No.1584 of 2021 (Arising Out of SLP (Crl) No. 1816 of 2019) the Hon'ble Apex Court has observed as under in detail:-
''19. On a comparison, one could decipher that the phrase "in furtherance of the common intention" was added into the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view:
"It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals."
20. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word 'omission', meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 45 of 59 include other acts along with it.
21. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.
22.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34IPC does not get attracted.
23.It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.
24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.
25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.
26.The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 46 of 5927.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.
29.The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgments:
Suresh v State of U.P. ((2001) 3 SCC 673):
"24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co- accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 47 of 59 liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.
xxx xxx xxx
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:
"22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused -- though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:
"24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 48 of 59 even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."
Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):
"...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34includes a series of acts and, further, "act" includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co- operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait". By S. 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for "that act"
and "the act" in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."
Mehbub Shah v. Emperor (AIR 1945 PC 148):
"....Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all." Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 49 of 59 as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan..."
Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:
"7...It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly..."
Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:
"15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur."
Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:
"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture...."
Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]:
"8. ...As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who joined together in doing the criminal act, provided that such SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 50 of 59 commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre- arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]:
"12. ...As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention, then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.......... "
Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]:
"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34.
SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 51 of 59While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22. Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab 1991 (1) SCC 519).
23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case..."
Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]:
"87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section 34 IPC applies SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 52 of 59 where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase "common intention" means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case."
30. The aforesaid principle has also been dealt with in extenso by the Apex Court in Virendra Singh V. State of Madhya Prades ((2010) 8 SCC 407) through the following paragraphs:
"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre- concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465.
16. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is 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.SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 53 of 59
17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply. xxx xxx xxx
36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 30 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories:
(1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike.
37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with the circumstances when a person is vicariously responsible for the acts of others.
38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
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 SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 54 of 59 particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
41. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of felony is done in furtherance of the act.
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34."
(26) The well-established principle of law underlying provisions of Section 34 of IPC emerges from decision of Justice Vivian Bose in Pandurang, Tukia and Bhillia vs. The State of Hyderabad 1955 SCR (1) 1083 wherein it has been held as under:-
"33. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor [72 IA 148 at 153 and 154]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 55 of 59 have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King- Emperor [72 IA 148 at 153 and 154] and Mahbub Shah v. King- Emperor [52 IA 40 at 49] . As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin:
nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice". 34. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose." (emphasis supplied) (27) Similarly, in the matter of Virendra Singh v. State of MP (2010) 8 SCC407 the Hon'ble Apex Court has explained the ambit of words "in furtherance of common intention of all" and has observed as under:- ''15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v. State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ 465] ."
(28) Followings are fundamental principles underlying Section 34 of IPC:-
''(i) Section 34 does not create a distinct offence, but is a principle of SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 56 of 59 constructive liability;
(ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done;
(iii) There may not be a long interval between the act and the pre-
meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and
(iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime. (29) The above fundamental principles have been adopted and applied by Hon'ble Apex Court in the matter of Chhota Ahirwar v. State of MP (2020) 4 SCC 126 as under:-
"26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. [See Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 :
(2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 :
(1924-25) 52 IA 40 :
AIR 1925 PC 1], "they also serve who stand and wait".
27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other."
(30) In the recent judgment of Sandeep v. State of Haryana 2021 SCC Online SC 642, a two-judge Bench of the Hon'ble Apex Court has held that an exhortation given by an accused immediately before a co- accused fired a shot killing the deceased would prove his involvement in the crime beyond reasonable doubt. Accordingly, this Court upheld the conviction of accused under Section 302 read with Section 34 of IPC.
30. It is already held above that the prosecution has failed to prove offence under Section 307 IPC. Section 307 IPC is the predicate offence and Section 34 IPC is the dependent offence/subjugate offence. The SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 57 of 59 subjugate offence is dependent on the main offence. In the facts and circumstances of the case when the prosecution has failed to prove that the accused Anuj Mohta has caused injury on PW-3 and the presence of remaining accused has also become doubtful at the spot then the charge under Section 34 IPC could not be sustained. The recovery against the accused is doubtful, the nature of injuries are not proved, except the accused Anuj Mohta the arrest of accused person later in time, there is no recovery of knife and it cannot be said that the accused person had shared such a common intention to incur joint liability/vicarious liability. Section 34 IPC is not a substantive offence. Hence sharing of common intention and pre-arranged plan is not proved on record by the prosecution. The number of accused available at the spot is also doubtful. In such view of the matter it is held that prosecution has failed to prove necessary ingredients under Section 34 IPC.
31. Nominal roll of accused no. 1 Anuj Mohta and accused no. 2 Vinod Kumar Joshi and accused no. 4 Zamil Khan is perused. The accused Anuj Mohta has already remained in prison/Judicial Custody from 07.01.2011 till 22.02.2014 for a period of three years, one month and 16 days. The accused Vinod Kumar Joshi has already remained in prison/Judicial Custody from 16.02.2011 till 23.03.2012 for a period of one year, one month and 08 days. The accused Zamil Khan has already remained in prison/Judicial Custody for a period of one year, two months and 04 days.
32. In view of the discussion held above it is found that the prosecution has failed to prove the commission of robbery by all the accused person SC No. 27327/2016 FIR No. 02/2011 State Vs. Anuj Mohta & Ors. Page 58 of 59 under Section 393/394/398/34 IPC. Further, prosecution has also failed to prove that the accused has committed offence under Section 307/34 IPC. Hence all the accused are acquitted of the offence charged against them and it is held that prosecution has failed to prove the charge levelled against all the accused persons. Accordingly, all the accused stands acquitted. Their earlier personal bond are cancelled and surety are discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed as per rules. In terms of Section 437A Cr. PC, accused have furnished their bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court JOGINDER Digitally signed by
JOGINDER PRAKASH
on 10.05.2024. PRAKASH NAHAR
Date: 2024.05.10
NAHAR 16:03:43 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 27327/2016
FIR No. 02/2011
State Vs. Anuj Mohta & Ors. Page 59 of 59