Delhi High Court
Ram Preet @ Mithlesh And Anr. vs State (Nct Of Delhi) on 20 April, 2001
Equivalent citations: 2001CRILJ2434, 91(2001)DLT559, 2001(59)DRJ326
Author: Mahmood Ali Khan
Bench: Mahmood Ali Khan
JUDGMENT Usha Mehra, J.
1. Ram Preet and Nirmal @ Suresh @ Toni have assailed the order of their conviction and sentence dated 30.7.96 and 31.7.96 respectively, whereby the Additional Sessions Judge convicted them under Section 302 read with Section 34, IPC and sentenced them to undergo rigorous imprisonment of life and also to pay a fine of Rs. 2,000/-, in default of fine further six months rigorous imprisonment.
2. The conviction has been assailed by Ram Preet inter alia, on the grounds that he had no common intention with co-accused Nirmal, therefore, could not have been convicted by invoking Section 34, IPC. That no separate charge under Section 302 having been framed, he could not have been convicted under Section 302 by invoking the aid of Section 34, IPC. Aid of Section 34, IPC could not be taken because prosecution has not produced any evidence to show prior meeting of mind or pre-planning to kill the accused. Finally the role assigned to him was of catching hold of the deceased and exhortation.
3. So far as Nirmal@ Suresh @ Toni appellant No. 2 is concerned, he has assailed the order of his conviction primarily on the grounds that he has been falsely implicated. His identity had not been established. He was arrested three days after the incident. moreover, there were material contradictions in the testimony of the witnesses with regard to his arrest. Moreovever, there was no light at the scene of occurrence, therefore, the testimony of PW 9 Ajay Bir Singh could not be relied upon. Finally alleged signature of Ram Preet, appellant No. 1 on the memo of his arrest could not have been obtained on 24th May, 93, if he was arrested on 20th May, 93. He would not have been in police custody by 23rd May, 93. According to him police fabricated and planted case upon him.
4. In order to appreciate the challenge raised we may have a quick glance to the facts of thie cse. The story of the prosecution was unfoulded by the testimony of Ajay Bir Singh PW9. He was the author of the FIR. According to him on the intervening night of 20th and 21st May, 93 while he was on duty at the Railway Station, Main Hall, Pahar Ganj between 9.00p.m. to 9.00am., he heard a cry at about 11.00p.m. or 11.30p.m. near passenger main hall. He saw the accused Ram Preet holding the hands of the deceased Raju @ Thakur and accused Suresh @ Toni and one Pahari (who has not been arrested) having open knife in their hands. Ram Preet accused instigated the co-accused by exhorting to kill the deceased. On seeing this, Ajay Bir Singh (PW 9) rushed towards the place of occurrence but before he could reach the scene of occurrence, Suresh @ Toni and Pahari individually gave knife blow to the deceased. Ajay Bir Singh by the use of his "danda" which he was carrying he tried to catch the three accused persons.
5. Ajay Bir Singh PW with the help of his "danda" caught hold of accused Ram Preet at the spot. Accused Ram Preet tried to avoid his arrest as a result Ajay Bir Singh PW 9 had to use force. Resultantly accused Ram Preet sustained some minor injuries. He shouted for help from passer-by in order to nab the other two accused persons. But no one came forward to help him. As a result Suresh @ Toni and Pahari made good their escape. They were carrying open knife in their hands. However, on hearing his shouts PW Head Constable Devender of Delhi Home Guard reached the spot. Head Constable, Devender was asked to take the deceased Thakur to the hospital, whereas Ajay Bir took the accused Ram Preet to the police station and produced him before SI Desh bandhu. On the basis of his report Ext. PW 9/A FIR was registered. Information was received from the JPN Hospital that the injured Raju @ Thakur was declared brought dead by the doctor. After the registration of the case, PW 9 along with the accused Ram Preet went to the spot to complete the proceedings. Accused Ram Preet made a disclosure statement which was recorded as Ex. PW 9/C. On the basis of disclosure statement of Ram Preet, accused Toni @ Suresh was arrested. Accused Pahari however could not be traced nor could be arrested. It is in this backdrop that the charge was framed against the accused persons under Section 302 read with Section 34, IPC.
6. Contention of Mr. Rohit Sharma, Counsel for Ram Preet was that no case of common intention has been culled out from the facts of this case. There was in fact no pre-meditation or prior meeting of mind. Therefore, the provision of Section 34, IPC is not attracted in the facts of this case. Moreover, no weapon of offence was recovered. The identity of Suresh @ Toni was doubtful, hence benefit of doubt would go in favor of Suresh, the co-accused. Once the co-accused is granted benefit of doubt, the appellant Ram Preet cannot be convicted under Section 302 by invoking eh aid of Section 34, IPC. There is no charge under Section 302, IPC simpliciter against he accused persons. Once the charge is conjoined and if the benefit of doubt is given to one accused the co-accused cannot be convicted under Section 302, IPC. We find no substance in this argument of Mr. Rohit Sharma in the facts of this case. So far as Suresh @ Toni si concerned, there is sufficient material available on record to show that neither his identity was doubtful nor the non-recovery of weapon of offence entitles him any benefit of doubt. Ajay Bir Singh PW 9 in no uncertain words stated that he had seen Suresh @ Toni as well as Pahari having open knife in their hands. Each one of them inflicted a knife blow on the person of the deceased. This part of the testimony of PW 9 was never questioned nor he was subjected to cross-examination on this part of his testimony. Only question put to him was that there was no electricity at the place of occurrence. This suggestion PW 9 denied categorically, rather he testified that the occurrence took place at a instance of 15-20 yards from where he was standing and that there was electric light at the place of occurrence. It being a Railway Station near the passenger main hall there was electricity. it is so confirmed by PW 9. The distance from the place where he was standing was hardly 15-20 yards, therefore, he could clearly see the occurrence and the accused persons. Moreover, when he tried to apprehend Toni and Pahari they made their escape good. He had thus full opportunity to see them. Out of the three accused he could only apprehend accused Ram Preet. it, therefore, cannot be said that identity of accused Toni @ Suresh @ Nirmal was in doubt. There was no motive on the part of Ajay Bir Singh PW 9 to falsely implicate the accused persons. He was a Beat Constable performing his duties patrolling the railway station main hall. It is only when he heard the cries he looked towards the place of occurrence. He saw all the three accused persons and the role played by them. He, however, could catch hold of Ram Preet. Event he accused persons in their statements under Section 313, Cr.P.C. have admitted their presence at the place of occurrence at that time when deceased Raju @ Thakur sustained knife injuries. In their reply to the questions put to accused Suresh @ Toni, he said "
"Answer : We are taxi drivers. At about 10.30 p.m., I was in search of passengers. I saw a person lying on patri. I along with Ram Preet went to police station to inform about the same. They asked Ram Preet to sit in police station and one police official rushed towards the spot along with me. on the way he freed me and after two days police came to my house at about 11 a.m. and arrested me falsely in this case."
7. This reply in a way supports the case of the prosecution, that both the accused were present at the spot when the deceased Raju sustained knife injuries. Therefore, ti cannot be said that accused Toni @ Suresh was not at the spot or Ajay Bir Singh (PW 9) had not seen him inflicting the knife blow to the deceased. Hence the reliance by Mr. Sharma on the decisions of Supreme Court in the case of Sukhram v. State of Madhya Pradesh, , and of Sewal Das v. State of Bihar, ; Krishna Govind Patil v. State of Maharashtra, , is of no help to him. In those cases as referred to above, the Apex Court was dealing with the facts where challan under Section 302 read with Section 34, IPC was filed conjointly against more than one accused. Out of them some accused were acquitted. It was in this background the Apex Court observed that once the accused were conjointly charged for having committed an offence of murder after having pre-planned the same, and if the co-accused are discharged, then against one the case under Section 302 simpliciter cannot be made out. There cannot be any quarrel with the proposition of law. But the ratio of the cases cited by Mr. Sharma is distinguishable on facts of this case.
8. On the other hand Counsel for the State placed reliance on the decision of Apex Court in the case of Hem Raj v. State (Delhi Administration), 1990 Crl.L.J.2664. The Apex Court while dealing with a constructive charge under Section 302 read with Section 34, IPC against more than one accused came to the conclusion that if one of the accused persons alone inflicted injuries on deceased and participation of remaining accused disbelieved by the Court, then the accused who inflicted injuries on deceased could alone be convicted under Section 302 simpliciter. In the facts of the present case it is clear that appellant No. 1, i.e. Ram Preet caught hold of the deceased which caused his death. hence the judgment relied by Mr. Sharma are of no help to him.
9. As regard the identity of accused Suresh @ Toni there is substantial evidence available on record to indicate that he was the person who inflicted the knife blow to the deceased. For that reference can be made to the evidence of PW 9 Ajay Bir Singh. He saw Suresh @ Toni and Pahari inflicting knife blow to the deceased.
10. Testimony of Ajay Bir Singh PW 9 is reliable an truthful. He had no motive to falsely implicate the accused persons. Mr. Sharma then contended that there was no meeting of mind. The accused Ram Preet only wanted the accused Toni @ Suresh to inflict grievous injury and not to murder him. This argument has no substance in view of the fact that accused Ram preet not only exhorted to kill him but he caught hold of the deceased till such time accused Toni @ Suresh and Pahari gave respective knife blows to the deceased. Therefore, exhortation by the accused Ram Preet to finish the deceased followed by knife blows by the co-accused is sufficient to infer the meeting of minds to murder the deceased. Common intention can be inferred and can take place at the spot. It has been so observed by the Apex Court in the case of Rana Partap and Ors. v. State of Haryana, . Supreme Court in the said case observed "the circumstance that the three accused came together, and that two of them held the deceased while the third one stabbed him clearly indicates that they shared some common intention". Whether that common intention was to do away with the deceased is another question. in that case the evidence was not very clear because neither Rana Pratap accused nor Sat Pal alleged to have said anything to indicate that they wanted the deceased to be done away with. but that is not the case in hand. In the case in hand it has come in the testimony of Ajay Bir Singh PW 9 that Ram Preet instigated the co-accused Toni @ Suresh to do away with deceased. He said "TONI CHAKU MAAR SAALE KO" meaning thereby "Stab the bastard" and stabbing would be to finish him. Form this exhortation it can't be inferred that they wanted to inflict only grievous injury. The exhortation and the instigation by Ram Preet to stab the deceased is a clear point of their common intention to do away with the deceased. Therefore, the judgment relied by Mr. Sharma is of no help to him.
11. Now turning to the question whether Ajay Bir Singh PW 9 could see the occurrence. It has come on record that there was light at the spot, and therefore, he could see the knife blow being inflicted by appellant No. 2 and accused Pahari. He could identify Suresh @ Toni. There was no question of test identification parade being conducted of Suresh @ Toni because PW 9 had seen him from close quarter and identified him in Court also. In similar circumstances the Apex Court in the case of Daya Singh v. State of Haryan,JT 2001 (3) SC 16=I(2001) CCR 232 (SC) observed that purpose of holding test identification parade is to have corroboration to the evidence of eye-witnesses in the form of earlier identification that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then presence of corroboration by test identification would not be in any way material. These observations on all force apply to the facts of this case. Head Constable Ajay Bir Singh PW 9 had seen Suresh @ Toni inflicting knife blow to the deceased from a instance of 15-20 yards and that too when there was sufficient light to see the occurrence. Thus on the disclosure of Ram Preet when Suresh @ Toni was arrested, Ajay Bir Singh PW 9 identified him to be the same person who gave knife blow to the deceased. Therefore, there was no question of conducting any test identification parade or expressing any doubt to the identity of Toni @ Suresh. On this court also we find no merits in the contention of the Counsel for appellant No. 2.
12. The post-mortem report Ex.PW8/A shows that the cause of death was due to haemorrhage and shock from incised stab injuries to right lung and oesophagus vide injury No. 6. Injury No. 6 was caused by some sharp cutting stabbing weapon either double edged with one edge not so sharp or thin bladed single edged weapon. It was sufficient to cause death in the ordinary course of nature. Injury no. 7 was incised almost transverse stab would 3.2x0.4 cms. present in the middle back of abdomen in milline. It was caused by double edged sharp cutting weapon whereas injury Nos. 1,2 to 5,8 and 9 were caused by impact with some blunt object whereas injury Nos. 2,3,4,5 and 8 could be caused by impact of blunt surface also. Injury Nos. 6 and 7 as mentioned above clearly show that the knife blows were inflicted on the vital part of the body of the deceased intended to do away with him. Medical opinion, therefore, belies the contention of the Counsel for the appellants rather it proves the case of the prosecution that the injuries were inflicted with the intention to kill him. Mr. Sharma's contention that the offence, if at all committed by the appellants would at best be of grievous hurt. It definitely is not covered within the definition of "murder". Appellants can be liable to be punished under Section 326, IPC. Moreover, Injury in inflicted by appellant was all of a sudden.F rom the injuries inflicted on the person of the deceased, it cannot be inferred that appellant had any intention to cause death of the deceased. The circumstances of the case do not suggest that there was knowledge on the part of the appellants that the injuries caused were likely to cause death of the deceased. To support his contention Counsel placed reliance on the decision of Supreme Court in the case of Willie (William) Slaney v. State of Madhya Pradesh, . In this case it was held that where the accused, causing death of another, had no intention to kill then the offence would be murder only if : (i) the accused knew that the injury inflicted would be likely to cause death; or (ii) that it would be sufficient in the ordinary course of nature to cause death; or (iii) that the accused knew that the act must in all probability cause death.
13. There is no quarrel with the proposition as propounded, but the nature of injuries as caused to the deceased in this case when seen it cannot be said that the accused had no intention to kill the deceased. moreover, in the case cited by Mr. Sharma as referred to above, the facts and circumstances show that the occurrence took place all of a sudden and the accused had no intention to cause death. But the facts in hand show that appellant Suresh @ Toni was carrying open knife in his hand and so was Pahari and the accused Ram Preet exhorted him to do away with the deceased. Carrying upon knife in hand and other accused saying kill him shows the intention. Otherwise there was no question of their carrying open knife unless they had the intention to kill the deceased. As already mentioned above the Supreme Court in the case of Krishna Govind Patil (supra), observed that common intention can develop at the spot during the course of commission of offence and that is precisely what has happened because the co-accused of Ram Preet were carrying open knife in their hands and Ram Preet exhorted them to do away with the deceased. Therefore, common intention could have developed at the spot. Hence we find no substance in the arguments of Counsel for the appellant because the intention to kill is not required in every case. Even the knowledge that natural and probable consequences of an act would be death is sufficient for conviction under Section 302, IPC. Injuries seen on the person of the deceased show that knife blows were inflicted on the vital part of the body, therefore, accused had the knowledge of the natural and probable consequences of their act.
14. Counsel for the appellant No. 2 contended that there were contradictions in the testimony of PW 5, PW 10 and PW14. PW14 stated that he arrested the co-accused Suresh @ Toni whereas PW 5 said that the accused Suresh @ Toni was arrested at the pointing out of accused Ram Preet. PW 10 said that accused Sruesh @ Toni was identified by Ajay Bir Singh PW 9. We have perused the statement of PW 5, PW 10, PW 14 but find that there are no material contradictions in their testimony. PW 14 said that on the identification of Head Constable Ajay Bir Singh PW 9, accused Suresh @ Toni was arrested. This is precisely what Ajay Bir Singh PW 9 said. Similarly PW 5 stated that accused Sruesh @ Toni was arrested at the pointing out of Ram Preet and this was the case of Ajay Bir Singh PW 9 and of PW 14. Ajay Bir Singh PW 9 and PW 14 also stated that accused Ram Preet was with them when co-accused Suresh @ Toni was arrested. And it was at his pointing out and identification of PW 9 that Suresh @ Toni was arrested. Therefore, we find no material contradiction in their testimony. in fact the statement of Ajay Bir Singh PW 9 inspires confidence. It remained uncontroverter and unrebutted on the record. he had no motive to falsely implicate the appellants. No enmity alleged between PW 9 and the appellants. We find no reason to disbelieve the testimony of Ajay Bir Singh rather his testimony is worthy of credence.
15. For the reasons stated above we find no substance in this appeal. The same is accordingly dismissed. Order be conveyed to the appellants through Superintendent, Central Jail, Tihar.
16. Appeal dismissed.