Delhi High Court
Mohd. Sagir vs The State on 27 October, 2009
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27.10.2009
+ CRL. A. No.14 of 1997
MOHD. SAGIR ...APPELLANT
Through: Sumeet Verma, Advocate.
Versus
THE STATE ...RESPONDENT
Through: Mr. Sunil Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
SANJAY KISHAN KAUL, J. (Oral)
1. The appellant Mohd.Sagir along with co-accused Kamruddin (who was declared a PO during trial) were charged with the offence of causing death of Mustkin and on being found guilty, the appellant Mohd.Sagir was convicted under Section 302/34 of IPC in terms of the impugned Judgment dated 29.10.1996 and sentenced to undergo life imprisonment and to pay fine of Rs 2,000/- and in default of payment of fine to further undergo SI for three months in terms of the order on sentence dated CRL. A. No.14/1997 Page 1 of 8 30.10.1996. This has resulted in the present appeal being preferred before us.
2. The case of the prosecution is that on the fateful intervening night of 07/08.07.1992 at about 4 AM the appellant accompanied by Kamruddin went to the bullock cart (baghi) where the deceased had been sleeping. The appellant is alleged to have held his feet while Kamruddin hit him on the head with a heavy object which caused his death. On information being received, ACP Shiv Kumar/PW12 reached the place of occurrence at about 4.45 A.M. and found the dead body of the deceased on the bullock cart (baghi) with blood stains on the right temporal region.
3. The statement of Shahbuddin/PW3 was recorded at the site which is ExPw12/A and the same was sent to police station for registration of the case. Const. Balledin handed over the rukka to ASI M.Ralangi/PW9 who recorded the FIR under Section 302/34 of IPC (ExPW5/D). The bullock cart (buggi) and the blood stained bed sheet were taken into possession by SI Jai Parkash/PW2. Photographs were taken and the site plan was drawn. On completion of investigation, charge sheet was filed. The appellant pleaded innocence and claimed trial.
4. The case of the prosecution is based on the testimony of two eye-witnesses Shahbuddin/PW3 and Mohd.Kamal/PW4.
CRL. A. No.14/1997 Page 2 of 8
5. Shahbuddin/PW3 deposed that he knew both the accused persons as well as the deceased. He deposed that on intervening night of 07/08.07.1992 he along with PW4 and the deceased was sleeping on the bullock cart(buggi) near the tube well when he suddenly heard cry of the deceased at about 4 A.M. PW3 and PW4 woke up and saw that the appellant had caught hold of the feet of the deceased while Kamruddin was giving him beating with a heavy object like a rod on the right side of the temporal region. The incident is stated to have been seen by him in the light of the street as well at the spot. The appellant and Kamruddin are thereafter stated to have run away with the weapon of offence and despite effort could not be apprehended. The deceased was thereafter shifted to a cot and before he could be taken to the hospital, he died.
6. The testimony of PW4 is also identical. He has deposed that about a year before the fateful incident, there was some quarrel between the deceased and Kamruddin.
7. The post mortem report in respect of the deceased has been proved by Dr.L.K.Barua/PW5 who found a lacerated wound on the right side of the neck as well as a linear wound on the right ear and one linear bruise on the right side of the forehead with a fracture of right temporal bone. The doctor opined that the injuries were ante mortem in nature and were caused by the application of blunt force. The cause of death was due to coma as a CRL. A. No.14/1997 Page 3 of 8 result of head injuries which, in the normal course of nature, were sufficient to cause death.
8. It is also relevant to note at this stage that Mukesh Kumar Jain was examined as CW1. He deposed that he was summoned to the spot where he took rough notes and measurements on the pointing out of Shahbuddin/PW3, on the basis of which he prepared the scaled site plan ExPW14/A. The witness has stated that Shahbuddin/PW3 had told him that a wodden paya was used by accused for killing the deceased.
9. We have heard learned counsel for the parties.
10. Learned counsel for the appellant sought to plead initially that the evidence of PW3 and PW4 is doubtful because as per prosecution theory the alleged weapon was a rod whereas CW1 SI Mukesh Kumar Jain has stated that PW3 Shahbuddin who assisted him in preparing the site plan, told him that a wooden "paya" was used by the accused Kamruddin. He also submitted that even the weapon of offence has not been recovered. In our view, the infirmity pointed out by the learned counsel for the appellant is inconsequential. There is no law that in order to succeed in a court, investigating agency must recover the weapon of offence. On a careful perusal of the testimony, we find that the two witnesses have withstood the cross examination and the role assigned to the appellant and Kamruddin cannot really be disputed. The weapon of offence, however, was not found and in CRL. A. No.14/1997 Page 4 of 8 respect of the same there is a contradiction between the testimony of PW3 who claimed that it was something like a rod while the CW1 has stated that the same PW3 had indicated that a wooden paya was used for killing the deceased.
11. The testimony of PW3, thus, does show that a hard object was used to inflict injuries on the deceased and since PW3 has deposed that the object was "like rod" and thereafter it emerged that it was a wooden paya, that appears to be the weapon of offence. As to whether the wooden paya was carried by Kamruddin with him or it was an object lying at the site has not emerged from the testimony of the witnesses.
12. Learned counsel for the appellant has essentially tried to canvass the proposition that assuming the case of the prosecution to be correct, the present case was not one where the appellant should have been convicted under Section 302 of IPC with the aid of Section 34 of IPC. In this behalf, learned counsel has pointed out that the appellant as well as Kamruddin were not armed with any sharp weapon like a knife or any other weapon like a katta or a pistol and it was an object like a wooden paya which had been used to attack the deceased. The role of the appellant was to hold feet of the deceased while Kamruddin inflicted injuries to him. Learned counsel for the appellant has thus contended that at best the common intention, which could be inferred, could be to CRL. A. No.14/1997 Page 5 of 8 cause grievous injury to the deceased and thus an offence under Section 325 of IPC is made out against the appellant. The said Section 325 of the IPC reads as under:
"Section 325. Punishment for voluntarily causing grievous hurt Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
13. Learned counsel for the appellant has taken aid of pronouncements of the Supreme Court in respect of such common intention. In Ramashish Yadav and Ors.v.State of Bihar; 2000 SCC (Crl.)9 it was observed that the principle of joint liability in doing of a criminal act under Section 34 of IPC is essentially based in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature was stated to be the element of participation in action and a pre-arranged plan which is proved either from conduct or from circumstances or from any incriminating facts. The Supreme Court went on to observe that :
"It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert of meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment CRL. A. No.14/1997 Page 6 of 8 but there must be pre-arrangement or pre-mediated concert."
14. In the given facts of the case, the accused persons came and caught hold of the deceased whereafter the other accused came with a gandasa and gave blows with it and the same was held not to form a common intention of all the four accused to cause death of the deceased.
15. We find substance in the plea of the learned counsel for the appellant though we have no doubt that there was a common intention formed on the part of the appellant and Kamruddin when they visited the deceased at 4 A.M. in the morning and the appellant caught hold of the feet of the deceased while Kamruddin hit him with a hard object like a wooden paya of a cot. The question however remains what was this common intention?
16. In our considered view, from the testimony of the witnesses, we cannot come to the conclusion that the appellant and Kamruddin shared a common intention to cause death of the deceased.
17. The role assigned to the appellant is that he held the feet of the deceased while his co-accused Kamruddin hit the deceased with a rod or a "paya". In the absence of user of a dangerous weapon like knife, pistol or a katta etc., which would normally be used in such a situation where there is an intention to cause death of a person, at best what can be inferred from the evidence is that the appellant shared a common intention with his co-accused Kamruddin to cause grievous injury to the deceased. CRL. A. No.14/1997 Page 7 of 8
18. In view of the aforesaid finding, the appellant is liable to be convicted under Section 325 r/w Section 34 of IPC and we accordingly modify the sentence of the appellant and convert the same from the one under Section 302/34 of IPC to one under Section 325/34 of IPC and sentence the appellant to undergo RI for 6 years. We, however, sustain the order on fine.
19. The appeal is thus allowed to the aforesaid extent.
20. We find from the nominal roll that the appellant has already undergone the sentence of six and a half years and thus has served the sentence awarded to the appellant in default of payment of fine which was to pay a fine of Rs.2,000 in default to undergo SI for three months.
21. Bail-cum-surety bonds stand discharged.
22. The appellant be released forthwith if not wanted in any other case.
SANJAY KISHAN KAUL, J.
October 27, 2009 AJIT BHARIHOKE, J.
dm
CRL. A. No.14/1997 Page 8 of 8