Delhi District Court
8. In Vadivelu Thevar vs . The State Of Madras 1957 Air(Sc) 614 ) ... on 1 September, 2022
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Rajender & Ors.
FIR NO. : 67/2003
P.S. : Sultanpuri
R-NO. : 539394/16
Date of commission of offence : 17.01.2003
Name of Informant/complainant : Smt Radha
Name of accused : 1. Rajender Prasad (proceedings abated vide
order dated 25.07.2022)
2. Dharamveer (proceedings abated vide or
der dated 15.05.2013)
3. Shiv Hari
Offence/s complained of : s. 452/427/506/34 IPC
Cognizance under section/s : s. 452/427/506/34 IPC
Charges framed under section/s : s. 452/427/506/34 IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 25-07-2022
Date of pronouncement : 01-09-2022
Final Order : Acquittal
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Ms. Sampada Rani
Present : Pritu Raj, M.M.- 01,
Rohini Courts, Delhi.
R. no. 539394/16 State v Rajender Prasad ETC. Page 1 of 20
JUDGEMENT
1. The accused Shiv Hari is facing trial for offences s. 452/427/506/34 Indian Penal Code, 1860 [hereinafter referred to as IPC].
2. Stated succinctly, the facts germane for the prosecution of the case is that on 17.01.2003, the accused Shiv Hari along with co-accused namely Rajender Prasad and Dharamvir (both since deceased), in furtherance of their common in- tention, committed house trespass in the premises of C-1/66, Krishan Vihar, Delhi where the complainant was residing as a tenant and while committing the afore- said act, caused damage to the property of the complainant along with criminally intimidating the complainant, leading to the present case.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident an FIR no. 67/2003 on 17.01.2003 and, after investigation, submitted the charge sheet on 16.01.2004 against the aforementioned accused u/s. 452/427/506/34 IPC. Cognizance was taken vide order dated 16.04.2004. Provi- sions of section 207 Cr.P.C. were complied on 27-04-2004.
4. Charges u/s. 452/427/506/34 IPC were framed and read over to the accused, in Hindi, on 14.02.2005 to which they denied the incident and claimed to be tried.
5. During the trial of the case, accused Dharamveer and Rajender Prasad expired and proceedings qua them were abated vide order dated 15.05.2013 and 25.07.2022 respectively.
R. no. 539394/16 State v Rajender Prasad ETC. Page 2 of 20
6. The prosecution, in order to prove the case beyond all reasonable doubt, exam-
ined five witnesses in support of its case during the course of trial.
7. PW1 Lady Ct. Phoolwati deposed that on 17.01.2003, while posted at PS Sultan Puri and working as DD Writer, at about 09:58 am, she received a call regarding throwing of household articles at C-1/66, Krishan Vihar, Sultan Puri. She further deposed that she had recorded the information vide DD no.21 B and handed over to ASI Jagdish Rana who left the spot alongwith Ct. Ram Kishan for inquiries. She also proved copy of DD as Ex.PW-1/A (OSR).
8. PW-2/HC Dalbir Singh deposed that on 17.01.2003, while posted as Duty officer from 08.00 am to 08:00 pm, at about 02:20 pm, Ct. Ram Kishan produced a rukka sent by ASI Jagdish at which he registered a FIR of this Case. He further deposed that he sent rukka and copy of FIR to IO and proved endorsement on rukka as Ex.PW-2/A and copy of FIR As Ex.PW-2/B.
9. PW-3 Babbal Bhardwaj deposed that he had not taken any photographs of the spot in the present case and some worker of his studio might have taken the same. He further deposed that he did not know about this fact as to whether any photo- graph was taken through his studio or not and he does not have any negatives in his possession.
10. PW-4 Radha Devi deposed that at least 14 to 15 years ago, accused Rajender Prasad borrowed Rs.17,000/- from her and he asked her to vacate the aforesaid house as she was a tenant there. She deposed that she asked them to return her R. no. 539394/16 State v Rajender Prasad ETC. Page 3 of 20 money and then she would vacate the aforesaid house. She further deposed that accused Rajender alongwith other associate (witness pointed out towards accused Shiv Hari) and some other associates threatened her to damage her house. She further deposed that on that day at least 14 to 15 persons including accused Ra- jender and Shiv Hari entered in her house. She deposed that her door was opened on that day and suddenly all of them forcefully entered in her house and started to throw her household articles including TV, Fridge etc outside in the gali. She fur- ther deposed that she called police and police reached at her house. This witness correctly identified the accused in court.
11. PW-5 Retired ASI Jagdish deposed that on 17.01.2003, he was posted at PS Sul-
tan Puri as ASI. He deposed that on that day, on receipt of DD no. 21B, he along with Ct. Ram Kishan went to the spot ie C-1/66, Krishan Vihar, Sultan Puri, Delhi, where he met with complainant Radha and the house hold articles were spread outside the abovesaid house. He further deposed that he recorded state- ment of complainant Ex. PW4/A, prepared rukka Ex. PW5/A and handed over to Ct. Ram Kishan for registration of FIR. He further deposed that accordingly, Ct. Ram Kishan went to the PS and after some time, Ct. Ram Kishan reached at the spot and handed over the copy of FIR and original rukka to him. He further deposed that in the meantime, he called the photographer and he got clicked the photographs of the articles scattered outside the house and spot and proved the photographs as Ex. P1 to P3. He further deposed that he prepared site plan Ex. PW5/B. He further deposed that he arrested and personally searched the accused R. no. 539394/16 State v Rajender Prasad ETC. Page 4 of 20 Dharamveer (since expired) vide memos Ex. PW5/C and D and arrested and personally searched the accused Shiv Hari vide memos Ex. PW5/E & F. He fur- ther deposed that he recorded statement of witnesses. He further deposed that on 28.02.2003, he arrested and personally searched the accused Rajender vide memos Ex. PW5/G and H. He further deposed that thereafter, he prepared charge sheet and filed before the concerned court. The witness correctly identi- fied the accused Shiv Hari and Rajender during his testimony in the Court.
12. Evidence on behalf of the prosecution was closed vide order dated 17-03-2018.
All the incriminating evidence which had come in evidence against the accused persons were put to the accused persons vide. SA recorded under s. 313 Cr.P.C. on 22-01-2020 wherein the accused persons chose to lead DE
13. DE was closed vide order dated 30.03.2022 and the matter was fixed for final ar-
guments.
14. Final arguments were heard on behalf of both sides on 25-07-2022 and the matter was fixed for judgement vide order dated 22-08-2022.
APPRECIATION OF EVIDENCE
15. Before embarking to determine the guilt of innocence of the accused, it would be prudent to reproduce the relevant sections here for the sake of brevity:
S. 427 IPC Mischief causing damage to the amount of fifty rupees.--Whoever com- mits mischief and thereby causes loss or damage to the amount of fifty rupees or up-R. no. 539394/16 State v Rajender Prasad ETC. Page 5 of 20
wards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
s. 452 IPC House-trespass after preparation for hurt, assault or wrongful restraint.-- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
s. 503. Criminal intimidation.--Whoever threatens another with any injury to his per- son, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.-- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
506. Punishment for criminal intimidation.-- Whoever commits, the offence of crimi-
nal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
Determination qua s. 452 & 427 IPC
16. The twin charges u/s 427 IPC and 452 IPC deserve to be discussed together since both the charges are interconnected and overlapping owing to the peculiar facts of the case, as reiterated above. Hence this Court will proceed to determine whether the prosecution has been able to prove its case against the accused Shiv Hari qua these two charges, conjointly.
R. no. 539394/16 State v Rajender Prasad ETC. Page 6 of 20
17. It is settled law that the outcome of any criminal case depends on the successful discharge of the burden of proof by the prosecution against the accused persons beyond all reasonable doubts. This burden never shifts and the case of the prose- cution must stand on its own legs and it cannot take any advantage of any flaw in the version/stand of the defence. A perusal of the case of the prosecution shows that the entire case of the prosecution rests on the sole public witness i.e. PW-4, who is also the complainant in the present case.
18. Before proceeding into the merits of the case, the Court deems it proper to dis-
cuss the position of law while faced with cases wherein the prosecution case rests solely on the testimony of a single witness. It is settled law that the testimony of any witness falls under three major categories - wholly reliable, wholly unreliable and neither wholly unreliable or reliable. It is further settled law that it is the quality of the evidence which matters and not the quantity of evidence and cor- roboration ought to be insisted only on the existence of genuine doubts.
19. Reliance in this regard is placed on Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC 367, where it was held:
8. In Vadivelu Thevar vs. The State of Madras 1957 AIR(SC) 614 ) this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly neither wholly reliable nor wholly unreliable. In the case of first to categories this Court said that they pose little difficulty but in the case of third category of witness corroboration would be re-
quired. The relevant portion is quoted as under:
"...Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for R. no. 539394/16 State v Rajender Prasad ETC. Page 7 of 20 proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories, namely:
1) Wholly reliable.
2) Wholly unreliable.
3) Neither wholly reliable nor wholly unrealiable.
In the first category of proof, the court should have no difficulty in coming to its con- clusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irre- spective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging sub- ornation of witnesses..."
9. Vadivelu Thevar's case (supra) was referred to with approval in the case of Jagdish Prasad and others vs. State of M.P. 1994 AIR(SC) 1251 ). This Court held that as a general rule to court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the In- dian Evidence Act, 1872 (in short the 'Evidence Act'). But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
20. Furthermore, the principles to be applied while appreciating the testimony of an ocular witness has been summarised in the recent pronouncement of Apex Court in Shahaja @ Shahajan Ismail Mohd. Shaikh vs State Of Maharashtra (2022 SCC OnLine SC 883), as follows:
28. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible R. no. 539394/16 State v Rajender Prasad ETC. Page 8 of 20 to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those wit-
nesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts for- ward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
21. Applying the aforesaid principles to the facts of the present case, in the consid-
ered opinion of this court, the prosecution has failed to discharge its burden of proof against the accused beyond all reasonable doubt as the testimony of the sole eye-witness, PW-4, does not have a ring of truth around it owning to the dis- crepancies and improvements in the same and it does not inspire the confidence of this Court and the same ought to be corroborated in material particulars. The reasons for same are discussed hereunder.
22. The case of the prosecution is that on the alleged day, the accused persons had entered in the house of the complainant and threw out the articles of the com- plainant despite her protests. This witness has gone on to depose in her examina- tion-in-chief that 'at least 14 to 15 persons including both accused persons en- tered in my house.' However, this witness, has stated the that the number of as- sailants who had entered her place of residence were four in number in an earlier statement given by her to the investigative agencies. This witness had been duly confronted with this statement, exhibited as PW4/A, wherein the number of as- sailants has been mentioned as four and the fact of recording of this statement has R. no. 539394/16 State v Rajender Prasad ETC. Page 9 of 20 been duly proved by the IO in his examination-in chief. Therefore, this witness has made considerable improvements in her testimony as regards the incident.
23. Furthermore, the case of the prosecution is also dented by inconsistencies regard-
ing the recording of statement of the complainant, Ex. PW4/A, by the police au- thorities. PW4, while being cross-examined by the Ld. APP for the State has failed to support the case of the prosecution by refusing to identify her thumb im- pression on her statement given to the investigating agencies. Additionally, while PW4 has deposed in her cross-examination by the APP for the state that her thumb impressions had been taken by the police officials, she instantly contra- dicted the same by deposing, in her cross-examination by the Ld. Counsel for the accused Rajender, that she had not affixed her thumb impression on any docu- ment. In the considered opinion of this Court, the aforesaid circumstances create a serious doubt on the case of the prosecution as the very essence of the investi- gation and consequent trial - the statement of the victim has remained unproved. Since the very statement on the basis of which the present prosecution has been launched, has been denied by the maker of the same, the entire case of the prose- cution is severely dented and considerable doubts are raised as to the authenticity of the case of the prosecution.
24. Another material discrepancy in the case of the prosecution is that while the IO of the present case, examined as PW5, has stated that he called the photographer and got the photographs of the place of occurrence/spot clicked, the same has been denied by the photographer, examined as PW3, who has deposed that he had R. no. 539394/16 State v Rajender Prasad ETC. Page 10 of 20 not taken any photographs in the present case. Further, while these photographs have been marked as Mark A-1 to Mark A-3, no reliance can be placed upon these photographs owing to the fact that the authenticity of the same has been de- nied by the alleged maker of these photographs i.e. PW3. Moreover, these photo- graphs could not be identified by the main witness of the case, PW4, who upon being shown the photographs refused to identify the same owing to her medical condition. Moreover, this witness has categorically deposed in her cross-exami- nation that no photographs had been taken by the police officials in her presence, rendering the authenticity of Mark A-1 to A-3 doubtful and creating material dis- crepancies in the case of the prosecution.
25. Further, in the present case, the incident had occurred in a public place. However, no other public witness, complainant had been arrayed by the prosecution in or- der to corroborate the testimony of PW-4. The IO of the case, examined as PW-5 has categorically deposed that other public witnesses namely Dharambir and Ba- jua, were present at the spot when he allegedly reached the place of occurrence. However, these persons were not arrayed as witnesses on behalf of the prosecu- tion. In light of the above-discussed discrepancies in the testimony of PW-4, the case of the prosecution could have been strengthened by adducing corroborative evidence, which has not been done in the present case and the same is fatal for the case of the prosecution, Reliance in this regard is placed on Hem Raj & Ors. Vs. State of Haryana 2005 AIR (SC) 2110:
R. no. 539394/16 State v Rajender Prasad ETC. Page 11 of 20
The fact that no independent witness - though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious in- firmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur singh is alleged to have been in the com- pany of PW5 at a sweet stall and both of them after hearing the cries joined PW4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the de- ceased to hospital. He was there in the hospital by the time the first I.O.-PW9 went to the hospital. The evidence of the first I.O. reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not im- mediately but later. The I.O. admitted that Kapur Singh was the eye-witness to the oc- currence. In the FIR, he is referred to as the eye-witness along with PW5. Kapur Singh was present in the Court on 6.10.1997. The Addl. Public Prosecutor `gave up' the examination of this witness stating that it was unnecessary. The trial court com- mented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is differ- ent. The High Court commented that his examination would only amount to `prolifer- ation' of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution's omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the in- cident on the ground of `proliferation' of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses-PWs 4 & 5 by a known independent eye-witness could have strengthened the prosecution case, especially when the incident took place in a public place.
26. Moreover, a perusal of the testimony of the testimony of PW 4 shows that she falls within the category of inimical witnesses. Inimical, as defined in the Mer- riam-Webster dictionary, means 'having the disposition of an enemy'. In the present case, the testimony of the aforesaid witnesses makes it apparently clear that other cases were pending between the complainant and the accused persons. This witness, PW4, has also stated that the accused Shiv Hari, had earlier come to her house to threaten her. Hence the complainant and the accused persons, on ac- count of previously existing circumstances as stated here, were inimical wit- nesses.
R. no. 539394/16 State v Rajender Prasad ETC. Page 12 of 20
27. The law as regards to appreciation of testimony of inimical witnesses in no longer res-integra. While it is settled that the testimony of a witness/s cannot be rejected solely on the ground that they are interested or inimical witnesses, the standard of care to be exercised while appreciating the testimony of such wit- nesses is much higher as compared to other witnesses.
28. The Hon'ble Apex Court in ANIL RAI v. STATE OF BIHAR, (2001) 7 S.C.C. 318, has held, "In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity." Similarly, in Raju@balachandran & Ors. v. State of Tamil Nadu, the Hon'ble Supreme Court held, " The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the re- lated and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be exam- ined by applying a standard of discerning scrutiny."
29. In the present case, the case of the prosecution is already blighted by material dis-
crepancies and improvements in the testimony of PW4 and along-with other ma- terial contradictions in the testimonies of other witnesses examined on behalf of the prosecution. The prosecution has also failed to examine other public witness, despite their availability. Moreover, given the need for a greater standard of scru- tiny which needs to be done while dealing with testimonies of inimical witnesses, the sole testimony of PW4 would not suffice to discharge the burden of proof R. no. 539394/16 State v Rajender Prasad ETC. Page 13 of 20 placed upon the prosecution to prove its case beyond all reasonable doubt. While the non-examination of other witnesses would not in itself be a ground for disbe- lieving the story of the prosecution, as discussed earlier, the standard of scrutiny to which the testimony of an inimical witness ought to be subjected is much higher than any other witness. Therefore, on account of the aforesaid discussion, the non-arraying of any other public witness assumes even more significance and since the testimony of PW-4 does not inspire the confidence of the Court, the same cannot be solely relied upon to successfully discharge the burden of proof placed upon the prosecution. In light of the aforesaid observations, the accused is hereby acquitted of offences u/s 427/452 IPC.
Determination qua 506 IPC
30. The accused is also facing trial for the offence of criminal intimidation. In order to successfully bring home a prosecution u/s 506 IPC, the essential ingredients which ought to be proved have been laid down in a recent pronouncement of Hon'ble Apex Court in Vikram Johar v. State of UP (DOD 26-04-2019) For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edition with regard to proof of offence states following: -
"...The prosecution must prove:
(i) That the accused threatened some person.
(ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; R. no. 539394/16 State v Rajender Prasad ETC. Page 14 of 20
(iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat."
31. Similarly, in Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423, the law as to the requirements which need to be fulfilled for the successful prosecution of a case u/s 506 IPC ave been elucidated where it was held:
14. A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threat-
ened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
15. In the instant case, the allegation is that the appellants have abused the com- plainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere ex - pression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and cir- cumstances of the case, it appears that there was no intention on the part of the ap- pellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appel- lants posting a comment on the Facebook may not attract ingredients of criminal in- timidation in Section 503 IPC.
32. Coming to the facts of the present case, the entire testimony of PW-4 is totally silent as to any threat uttered by the accused towards the complainant. The com- plainant has not mentioned a single word regarding any threat of injury or of any other kind towards the complainant, which would be sufficient to attract the in- R. no. 539394/16 State v Rajender Prasad ETC. Page 15 of 20 gredients of s. 506 IPC. Moreover, apart from a bald statement that she had been threatened by accused Shiv Hari in her cross examination, nothing else has come in the entire testimony of this witness to substantiate the charge of s. 506 IPC against the accused. Even otherwise, this witness has admitted in her cross-exam- ination that despite such alleged threats, she was under the impression that the ac- cused persons would mend their ways. Hence, the essential ingredient of causing alarm to a person, who has been threatened, is not proved in the present case.
33. Accordingly, the prosecution has failed to proved the charges u/s 506 IPC against the accused. Accused Shiv Hari is hereby acquitted of the offence u/s 506 IPC.
Determination qua Sec. 34 IPC
34. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create any sub- stantive offence. The distinctive feature of the section is the element of participa- tion in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circum- stances appearing from the proved facts of the case and the proved circum- stances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan R. no. 539394/16 State v Rajender Prasad ETC. Page 16 of 20 or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or at the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individu- ally by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the partici- pants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an of- fence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common inten- tion animating the accused leading to the doing of a criminal act in furtherance of such intention.
35. The Hon'ble Apex Court in Krishnamurthy @ Gunodu vs State Of Karnataka [CRIMINAL APPEAL NO. 288 OF 2022, DOD 16.02.2022] while discussing the principle of common intention, held as follows:
"Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obli- gation to establish that there existed a common intention before a person can be vi- cariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre-arranged plan, which can be even formed at the spur of the moment or simultaneously just before or R. no. 539394/16 State v Rajender Prasad ETC. Page 17 of 20 even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that infer- ence. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. By Section 33 of IPC, a criminal act in Section 34 IPC includes omission to act. Thus, a co-per - petrator who has done nothing but has stood outside the door, while the offence was committed, may be liable for the offence since in crimes as in other things "they also serve who only stand and wait". Thus, common intention or crime sharing may be by an overt or covert act, by active presence or at distant location but there should be a measure of jointness in the commission of the act. Even a person not doing a particu- lar act but only standing as a guard to prevent any prospective aid to the victim may be guilty of common intention.5 Normally, however, in a case of offence involving physical violence, physical presence at the place of actual commission is considered to be safe for conviction but it may not be mandatory when pre-arranged plan is proved and established beyond doubt. Facilitation in execution of the common design may be possible from a distance and can tantamount to actual participation in the criminal act. The essence and proof that there was simultaneous consensus of mind of co-participants in the criminal action is however, mandatory and essential. In Krish- nan and Another v. State of Kerala, it has been observed that an overt act is not a re - quirement of law for Section 34 IPC to operate but prosecution must establish that the persons concerned shared the common intention, which can be also gathered from the proved facts."
36. The court further went out to hold, "It also follows that in some cases merely accompanying the principal accused may not establish common intention. A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the pos- sibility or probability of the final act. If the final outcome or offence committed is dis- tinctly remote and unconnected with the common intention, he would not be liable. This test obviously is fact and circumstance specific and no straitjacket universal for- mula can be applied. Two examples quoted in Bashir's case (supra) are relevant and explain the widest and broad boundaries of Section 34 IPC and at the same time warn that the ambit should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged. The examples also bring out the distinction between the criminal acts and the intent of a co-perpetrator; and the actual offence committed by the principal or main perpetrator.
37. Therefore, the crux of the matter which needs to be adjudicated here is whether the prosecution has been able to prove the common intention of a common inten- tion, as envisaged under section 34 IPC, against the accused persons. The proof R. no. 539394/16 State v Rajender Prasad ETC. Page 18 of 20 of such common intention has to be found by the acts of the accused persons and it has to be seen whether the actions of the accused persons are enough to at- tribute a common intention to all of them towards the commission of the offence.
38. In the considered opinion of this Court, since the prosecution has been unable to prove either of the charges u/s 323/341/427/452 IPC against the accused persons, they very basis on which a charge u/s 34 IPC could be proved against the accused was lost. Even otherwise, s. 34 IPC is not a substantive offence in itself. The ac- cused is hereby acquitted of the charges u/s 323/341 IPC.
Findings
39. In light of the aforesaid discussion, this Court is of the considered opinion that the defence has been able to punch holes in the version of the prosecution. It is well settled that the burden which lies on the prosecution is to prove the case be- yond all reasonable doubt and not merely on the preponderance of probabilities. The case of the prosecution must stand on its own two legs.
40. Reliance in this regard is placed on S.L.Goswami v. State of M.P, 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held that:-
"...... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prose- cution duty to somehow hook the crook. Even in cases where the defence of the ac- cused does not appear to be credible or is palpably false that burden does not be- come any the less. It is only when this burden is discharged that it will be for the ac- cused to explain or controvert the essential elements in the prosecution case, which would negate it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients R. no. 539394/16 State v Rajender Prasad ETC. Page 19 of 20 of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
41. The accused Shivhari is hereby acquitted of the offence punishable under Section 427/452/506/34 IPC.
42. File be consigned to Record Room after due compliance.
Announced in open Court (PRITU RAJ)
on 1st Sept, 2022 Metropolitan Magistrate-01
N/W, Rohini Courts, Delhi.
R. no. 539394/16 State v Rajender Prasad ETC. Page 20 of 20