Delhi District Court
State vs Aminuddin @ Choti And Ors on 24 May, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-000284-2012
SC No.27541/2016
FIR No.8/2012
U/s 307/34 IPC
P. S. Hauz Qazi
STATE VERSUS AMINUDDIN @ CHOTI AND ORS.
(i) SC No. of the case : 27541/2016
(ii) Date of commission of offence : 14.01.2012
(iii) Name, parentage and address : (1) Aminuddin @
of accused Choti
S/o Mohd.Salauddin
R/o 3589, Katra
Deena Beg, Lal
Kuan, Delhi-06
(2) Mohd. Atif
S/o Mohd.Saiduddin
R/o 3609, Katra
Deena Beg, Lal
Kuan, Delhi-06
(3)Mohd. Maushin (abated
vide order dated 03.01.24)
S/o Mohd.
Jamaluddin
R/o 3589, Katra
Deena Beg, Lal
Kuan, Delhi-06
State vs. Aminuddin @ Choti & Ors. Page 1 of 50
FIR No.8/2012
U/s 307/34 IPC
P. S. Hauz Qazi
(iv) Offences complained of : 307/34 IPC
(v) Plea of the accused : Not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 24.05.24
Date of Institution : 09.10.12
Date of Judgment reserved on : 20.05.24
Date of Judgment : 24.05.24
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Sh.
Anas S/o late Sh. Amir Ahmed that around 11:45 PM the complainant was sitting in front of his home. At that time the accused Mohd. Maushin came near him. The accused Mohd. Maushin had asked the complainant that how is he sitting at that time. He asked the complainant to stand up on which the complainant stood up. When the complainant stood up the accused wrapped his arms around the neck of the complainant and in the mean while the accused Aminuddin @ Choti @ Kana State vs. Aminuddin @ Choti & Ors. Page 2 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi had hit a scissor on the back right side of the complainant. In the mean while a third boy came and he hit the complainant with legs and fists. The complainant had raised alarm. The son of uncle of complainant reached at the spot and took the complainant/ injured to the hospital. The complaint is Ex.PW1/A and the complainant had identified his signatures at point A. The rukka is Ex.PW6/A. The endorsement on rukka is Ex.PW2/B. The FIR was registered by PW-2 which is Ex.PW2/A. Information was received at PS at 2:10 AM on 15.01.2012 and the incident had occurred on 14.01.2012 at 11:45 PM. Hence three accused are involved in the matter. The accused No.3 had caught the neck of the victim, accused No.1 had hit the victim by scissor on right side of back of the victim and accused No.2 had hit the victim with hands and fists. IO had filed the charge-sheet after the investigation of the case and the accused person were summoned. During pendency of the proceedings one of the accused Mohd. Maushin who is accused No.3 had expired and vide order dated 29.11.2023 the verification of death was sent. The death verification report was accepted vide order dated 03.01.24 and the date of death is 03.11.2023. Hence case against the accused Mohd. Maushin stands abated.
State vs. Aminuddin @ Choti & Ors. Page 3 of 50 FIR No.8/2012U/s 307/34 IPC P. S. Hauz Qazi
2. Charge was given to all the three accused on 19.11.2012 under Section 307/34 IPC to which they did not plead guilty and claimed trial. Accused No.2 Mohd. Atiq was given fresh charge after correction in his name from Mohd. Atiq to Mohd. Atif S/o Mohd. Sayeeduddin under Section 307/34 IPC on 30.10.2023. Prosecution had examined PW-1 to PW-8 as prosecution witness against the accused. The matter was listed for recording of SA on 03.01.24. The statement of accused No.1 Aminuddin was recorded on 23.03.24 and the statement of accused Mohd. Atif was recorded on 01.04.24. Both the accused have preferred not to lead evidence in defence.
3. Final arguments are heard on behalf of both the parties and record perused.
4. Learned Counsel for the accused No.2 Atif relied on the following citations:
(i) Rupinder Singh Sandhu vs. State of Punjab (2018) 103 ACrC 977;
(ii) Ram Kishan vs. The State (1989) ILR (Delhi) 409;
(iii) Anil Sute & Another vs. State of Maharashtra (2013) 81 ACrC 341;State vs. Aminuddin @ Choti & Ors. Page 4 of 50 FIR No.8/2012
U/s 307/34 IPC P. S. Hauz Qazi
(iv) Rai Singh vs. The State of Haryana (1971) AIR (SC) 2505;
(v) Naresh Kumar vs. State (2010) 10AD (Delhi) 469;
(vi) Waikhom Yaima Singh vs. State of Manipur (2011) 73 ACC 685;
(vii) Jugraj vs. State of Punjab (2010) 91 AIC 221;
(viii) Panda Nana Kare vs. State of Maharashtra (1979) AIR (SC) 697;
(ix) State of Maharashtra vs. Ahmed Shaikh
Babajan & Ors. (2009) 64 ACrC 349;
(x) Devinder vs. State of Haryana (2000) Sup
ACrC 738;
(xi) Purshottam & Anr. vs. State of Madhya Pradesh
(1980 ) AIR (SC) 1873;
(xii) Ram Narain Singh vs. State of Punjab (1975)
ACrC 273;
(xiii) Sujit Bardhan vs. State of Tripura (2007) 4
GauLJ 582;
(xiv) Ratan Singh vs. State of U.P. (2009) 5JT 408;
(xv) State of U. P. (now Uttrakhand) vs. Lakhan
Singh & Ors (2010) 2 UC 1250;
(xvi) Boyla Soren s/o Birsingh Soran vs. The State of
State vs. Aminuddin @ Choti & Ors. Page 5 of 50
FIR No.8/2012
U/s 307/34 IPC
P. S. Hauz Qazi
Bihar (2017) 1 AIRJharR 556;
(xvii) State of Karnataka vs. M. S. Basappa (2018)
1ACC 256; and
(xviii) Samsul Haque vs. The State of Assam (2020)
110 ACrC 360.
5. To prove the charged offence it has to be seen first whether offence under Section 34 IPC is made out or not. The necessary ingredients under Section 34 IPC are laid down in the citation titled as Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083. It was held in case titled Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083 wherein it was held that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established as follows:
(i) Common intention
(ii) Participation of accused in commission of any offence If common intention is proved but an overt act is attributed to the individual accused then Section 34 will be attracted as essentially it involves vicarious liability but a participation of accused in the crime is proved and common intention is absent then Section 34 cannot be invoked. It was held in case titled Ramashish Yadav Vs. State of Bihar 1999(8) SCC 555 that Section 34 requires a pre-
arrange plan and it pre-supposes prior concert therefore, there must be prior meeting of mind. The prior meeting of mind can be developed at the spur of moment but there must be pre-arrangement or pre-mediated concert. It was held in case titled Ram Bilas Singh v. State of Bihar AIR 1989 SC 1593 that in order to convict a person as vicariously liable under Section 34 or Section 149 of IPC then it is not necessary to prove that each and everyone of them had indulged in overt acts. The common intention can be formed in the State vs. Aminuddin @ Choti & Ors. Page 6 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi course of occurrence which was so held in case titled Hariom Vs. State of U.P. (1993) 1 Crimes 254 (SC). It was held in case titled Santosh Desai vs. State of Goa (1997) 2 Crimes 666 (Bom) that when an offence is sought to be proved only on circumstantial evidence then the allegation of common intention under Section 34 normally cannot be established in absence of meeting of minds, the overt act of the accused, by their conduct, by using the weapons in their utterance of words.
6. It was further held by Hon'ble High Court of Delhi in case titled Neeraj Alias Nagar vs State (NCT of Delhi) on 14 November, 2019 in Crl. A. 88/2019 has held as under:
Common Intention
53. Learned counsel for the accused persons argued that the prosecution failed to prove that the accused persons shared a common intention to commit the alleged offence and hence, they can't be held guilty for the offence punishable under Section 34 IPC.
54. Before delving into the merits of the case, we deem it appropriate to discuss the relevant provisions which are involved in the present case, Section 34 of the IPC reads as under:
"34. 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."
55. To bring an offence within the ambit of Section 34 IPC, the following factors are necessary to be present there:
(1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.State vs. Aminuddin @ Choti & Ors. Page 7 of 50 FIR No.8/2012
U/s 307/34 IPC P. S. Hauz Qazi
56. Therefore, in order to constitute an offence under Section 34 IPC, the accused is to be fastened with liability on the strength of Section 34 IPC, that they 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 distinction between a "common intention" and a "similar intention" which is real and substantial is also not to be lost sight of. The common intention implies a prearranged plan or a plan developed on the spur of the moment. Such common intention which is developed on the spur of the moment is different from the similar intention actuated by a number of persons at the same time.
57. In other words, 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. 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.
58. The Apex Court in the case of Rambilas Singh v. State of Bihar reported in AIR 1989 SC 1593 the Hon'ble Supreme Court held as under:
"It is true that in order to convict persons vicariously under S. 34 or S. 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 he members of the unlawful assembly." (emphasis supplied)
59. The aforesaid judgment was followed by the Apex Court in the case of Suresh &anr v. State of UP reported in 2001 3 SCC 673. The germane portion of the judgment is extracted below:
"37. However, in view of the importance of the matter, insofar as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of State vs. Aminuddin @ Choti & Ors. Page 8 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention.
38. Section 34 of the Indian Penal Code recognizes the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act".
The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
State vs. Aminuddin @ Choti & Ors. Page 9 of 50 FIR No.8/2012U/s 307/34 IPC P. S. Hauz Qazi
60. Keeping in view the facts of the present case and applying the principles laid down by the Hon'ble Apex Court, it is established that common intention necessitates prior concert which requires a prearranged plan, but such preconcert may develop on the spur of the moment and will make the accused persons responsible for the ultimate criminal act done by several persons. Further, on the basis of evidence borne out from the previous part of the judgment, it is substantiated that all the accused persons in furtherance of their common intention were actively involved in the commission of the alleged offence.
7. 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 State vs. Aminuddin @ Choti & Ors. Page 10 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 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.
State vs. Aminuddin @ Choti & Ors. Page 11 of 50 FIR No.8/2012U/s 307/34 IPC P. S. Hauz Qazi
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 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:State vs. Aminuddin @ Choti & Ors. Page 12 of 50 FIR No.8/2012
U/s 307/34 IPC P. S. Hauz Qazi "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 include other acts along with it.
State vs. Aminuddin @ Choti & Ors. Page 13 of 50 FIR No.8/2012U/s 307/34 IPC P. S. Hauz Qazi
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 State vs. Aminuddin @ Choti & Ors. Page 14 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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.
27.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 State vs. Aminuddin @ Choti & Ors. Page 15 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 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 State vs. Aminuddin @ Choti & Ors. Page 16 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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.State vs. Aminuddin @ Choti & Ors. Page 17 of 50 FIR No.8/2012
U/s 307/34 IPC P. S. Hauz Qazi 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 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 State vs. Aminuddin @ Choti & Ors. Page 18 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 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.State vs. Aminuddin @ Choti & Ors. Page 19 of 50 FIR No.8/2012
U/s 307/34 IPC P. S. Hauz Qazi 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 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 State vs. Aminuddin @ Choti & Ors. Page 20 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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.State vs. Aminuddin @ Choti & Ors. Page 21 of 50 FIR No.8/2012
U/s 307/34 IPC P. S. Hauz Qazi 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.
While 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 State vs. Aminuddin @ Choti & Ors. Page 22 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 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 State vs. Aminuddin @ Choti & Ors. Page 23 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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.
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 State vs. Aminuddin @ Choti & Ors. Page 24 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 particularly important in cases where evidence regarding State vs. Aminuddin @ Choti & Ors. Page 25 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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:-
State vs. Aminuddin @ Choti & Ors. Page 26 of 50 FIR No.8/2012U/s 307/34 IPC P. S. Hauz Qazi "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 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 State vs. Aminuddin @ Choti & Ors. Page 27 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 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.State vs. Aminuddin @ Choti & Ors. Page 28 of 50 FIR No.8/2012
U/s 307/34 IPC P. S. Hauz Qazi (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.
8. To establish Section 34 IPC the prosecution has to prove that all the three accused were present at the spot during the commission of the offence and with common intention such offence was committed by them. It is deposed by PW-1 that State vs. Aminuddin @ Choti & Ors. Page 29 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi first accused No.3 Mohd. Maushin came at the spot on 14.01.2012 at about 11:45 PM and he put his arm around the neck of PW-1. In the meantime another accused No.1 Aminuddin @ Choti came at the spot and he gave blow of scissor near right side of victim. Then accused No.2 Mohd. Atif came there and he gave beating to PW-1 by fists and legs. When PW-1 raised alarm then all the accused ran away and cousin of PW-1 namely Mohd. Tanveer reached at the spot who took PW-1 to the hospital. The site plan Ex.PW1/B was prepared at the instance of PW-1
9. Learned Counsel for the accused has referred to Ex.PW6/I which is DD No.3A dated 15.01.2017 received at Police Station around 12:35 PM from phone No.9212708341 an information is received that near Hamdard Davakhana at Lal Kuan, Hauz Qazi that some fight had taken place. Hence the information was received at PS after about 50 minutes when the incident had occurred. The place of incident is Hamdard Davakhana. PW-1 in his cross examination dated 16.01.2018 at page 3 had deposed that the distance between his house and Hamdard Davakhana is about 100 meters and to reach there one has to cross one street. Suggestion is given that he has to cross many streets. It is admitted as correct that on small commotions large State vs. Aminuddin @ Choti & Ors. Page 30 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi crowd gather in their area and accused is staying in joint family which is quite large. In the site plan at point A is shown the place where the offence was committed. From this point the Lal Kuan Bazar is at a distant place and not visible to naked eye. In FIR Ex.PW2/A it is mentioned that PW-1 was sitting outside his house where the incident had taken place. Therefore as per PW-1 the incident had taken place at point A in the site plan whereas vide DD No.3A Ex.PW6/I the incident had taken place at Lal Kuan Bazar near Hamdard Davakhana. Both the place are quite different place and at a distance of each other. There is no reason with the prosecution for not joining the person who had intimated to police about the incident vide first information Ex.PW6/I. Hence the place where the incident had occurred is not proved by the prosecution and it has remained in doubt that whether the incident had occurred at point A or at Lal Kuan Bazar. Hence this has also created fatal doubt in the story of the prosecution if any such incident had at all taken place. It was held in case titled State of Karnataka vs. M. S. Basappa (2018) 1ACC 256 relevant para No.7 is reproduced hereasunder:
7. There is also another discrepancy as to the time of incident. In the FIR, though it was stated at one stage of the complaint that the incident took place at 06.30 p.m. but at another stage it was stated that it took place at 08.45 p.m. The High Court has also found discrepancy in registering the case as there was delay of four hours, State vs. Aminuddin @ Choti & Ors. Page 31 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi despite the police party stated to have reached the scene of occurrence immediately after the incident. But the police did not record any statement from PW16 (Kiran) though he was present at the spot, and instead they waited for Manjappa to come to the spot and only thereafter registered a case against the accused as per his statement. There is yet another major discrepancy in the prosecution version, as regards to the place of occurrence. As per the medical record (Ex. P.21) of the hospital where the complainant party has received treatment, the incident took place in the field and some neighbours have beaten them whereas in the complaint (Ext.
P13) it is stated that the incident took place in the open place in front of the temple in the village. The sketch shows that there is a change in the place where the incident has taken place, which is fatal to the prosecution case.
10. Other than this in FIR Ex.PW2/A and in complaint Ex.PW1/A the PW-1 has stated that a third boy had beaten him by fists and legs and he does not know his name. However PW- 1 can identify the said third boy if he appears before him. Two of the boys named are accused No.1 and 3. Hence as per PW-1 he does not know the name of accused No.2 on the date of incident namely Mohd. Atif. To the contrary PW-1 had deposed as correct that he know the accused Atif at page No.1 of cross examination dated 16.01.2018. It is admitted by PW-1 that accused Atif is also residing in his locality. It is further deposed State vs. Aminuddin @ Choti & Ors. Page 32 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi contrary to the FIR Ex.PW2/A that he had told when the FIR was registered that the name of the boy was Atif whereas in his complaint Ex.PW1/A when PW-1 was confronted with then he has failed to point out where it is so recorded. In fact it is recorded that he does not know the name of the third boy who is Mohd. Atif. This has created doubt in the story of the prosecution that the complaint made by PW-1 could be made on the basis of some extraneous considerations and he is not disclosing the true facts of the case. The PW-1 knew the accused Atif very well who was residing in the same locality and did not disclose his name to the police when the FIR was recorded. It is deposed by PW-1 in cross examination dated 16.01.2018 at page 2 that the house of accused and his house are in close proximity. Hence doubt is created in the story of the prosecution that accused Atif if at all was present at the spot. Benefit of doubt must go to the accused and on this ground alone accused Atif is held entitled to acquittal in this case.
11. Another fact to be noted is that PW-1 is staying in a joint family which is quite large and incident had occurred outside his house at point A in site plan Ex.PW1/B. On such occurrence of the offence it is admitted as correct by PW-1 that a large crowd gathered in their area on a small commotion. It is State vs. Aminuddin @ Choti & Ors. Page 33 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi admitted as correct that the area where accused and PW-1 reside is a very congested area having both shops and residential houses. It is admitted as correct that the shops in the area remains open till late night and it remains crowded. Similar is the deposition of PW-5. PW-5 had deposed that people were there at the spot when he had reached there. The number of accused and where they escaped came to his knowledge from the person present there. The name of such person is not recorded by the IO. He does not remember if any blood was lying at the spot. PW-6 the IO in the case had deposed that he had made efforts to join public person but no one had agreed. It shows that public persons were present there upto when the police had reached at the spot. Hence it is difficult to believe with such big commotion the family members of PW-1 could not come out of the house and rescue PW-1 from the accused and that they could not see what was present at the spot at the time or immediately after commission of offence. Hence it has become doubtful that the alleged offence was committed outside the house of PW-1 at point A in the site plan Ex.PW1/B.
12. Other than this it is noted that PW-1 has improved about the number of accused present at the spot in his cross examination dated 05.03.2018 at page 2 in that accused No.3 State vs. Aminuddin @ Choti & Ors. Page 34 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi Mohd. Maushin came at the spot with 3-4 person and that PW-1 had informed about physical description of such 3-4 person to the police. Accused Maushin came on foot. Accused No.1 was sitting on a scooter and accused No.1 was with 3-4 person. Therefore as per deposition of PW-1 there were 4-5 accused who came at the spot whereas in complaint Ex.PW1/A it is stated by PW-1 that initially only one accused No.3 Mohd. Maushin came at the spot. There is no mentioning of any scooter or boy sitting on a scooter. Only three accused are named by PW-1 whereas now PW-1 has improved the version in his deposition that there were 4-5 accused. This has created doubt in the case of the prosecution if the incident had occurred at the spot in such manner by such person.
13. It is admitted as correct by PW-1 in his cross examination dated 05.03.2018 at page 5 that he had not named son of his uncle namely Sh. Tanveer when his statement was recorded initially. However Sh. Tanveer has not been produced in the witness box. The Tanveer is the person who had admitted PW-1 to the hospital. He was not produced by the prosecution in evidence. It is denied by PW-1 that he had falsely implicated accused No.1 due to his enmity with him. Had Tanveer been eye witness then there was no reason with prosecution for State vs. Aminuddin @ Choti & Ors. Page 35 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi joining him as witness despite he met PW-5 in the hospital. Nor Tanveer is witness to any of the seizure memo or exhibits.
14. From all the above discussed evidence it has come on record that the presence of all the three accused at point A in site plan Ex.PW1/B is doubtful whereas the incident had reportedly occurred near Hamdard Davakhana at Lal Kuan vide Ex.PW6/I. The police had not joined the witness who gave first information vide Ex.PW6/I despite his mobile number is recorded there.
15. The prosecution has also to prove the necessary ingredients of Section 307 IPC.
16. 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 State vs. Aminuddin @ Choti & Ors. Page 36 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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
(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:
State vs. Aminuddin @ Choti & Ors. Page 37 of 50 FIR No.8/2012U/s 307/34 IPC P. S. Hauz Qazi "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 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 State vs. Aminuddin @ Choti & Ors. Page 38 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi
(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-arm. 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, State vs. Aminuddin @ Choti & Ors. Page 39 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 judgment of the High Court overlooks material parts of the evidence and suffers from perversity. (2014) 5 SCC 369 18 Hence, we set aside the judgment 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
17. The Hon'ble Supreme Court of India in case titled State of 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 State vs. Aminuddin @ Choti & Ors. Page 40 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 State vs. Aminuddin @ Choti & Ors. Page 41 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 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 State vs. Aminuddin @ Choti & Ors. Page 42 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 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
18. Hence the first ingredient the prosecution has to be 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 State vs. Aminuddin @ Choti & Ors. Page 43 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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 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 State vs. Aminuddin @ Choti & Ors. Page 44 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi 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.
19. Other than this it has to be seen that whether the injuries on PW-1 are successfully proved by the prosecution. The MLC is Ex.PW8/A where the nature of injuries are recorded as dangerous. PW-8 has deposed that he had given the opinion that the nature of injuries were dangerous. However he had not placed on record the document on the basis of which he had given such opinion. It is admitted as correct that the depth of injury are not mentioned in the MLC. It is noted that the nature of injury as dangerous does not qualify under legal definition. It may be grievous. However the definition of grievous injury is State vs. Aminuddin @ Choti & Ors. Page 45 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi laid down under Section 320 IPC. The prosecution has failed to prove that how the nature of injury comes under Section 320 IPC since as per own case of the prosecution the accused was discharged from the hospital on 24.01.2012 and therefore the accused was not in hospital for 20 days or more nor injuries of such nature are proved. Hence the injuries are not proved as grievous in nature. Further no evidence is produced to show that by what weapon such injury could have been caused. The weapon of offence has not been recovered. Further the witness from FSL had deposed as PW-7 vide report Ex.PW7/A. However the said witness though had proved that the blood group found on the shirt is of Group-A but no blood sample of the PW-1 was taken to prove that the blood belongs to PW-1. In such view of the matter the presence of blood on the shirt was belonged to PW-1 is doubtful.
20. Hence the nature of injuries on PW-1 as per MLC Ex.PW8/A are not grievous. Stab wound was present measuring about 3x2 cm which are not proved by PW-8 by mentioning the nature of such injuries. It is not deposed that if such injuries could be caused by a scissor. No opinion is expressed in this respect.
State vs. Aminuddin @ Choti & Ors. Page 46 of 50 FIR No.8/2012U/s 307/34 IPC P. S. Hauz Qazi
21. It is deposed by PW-1 that Mohd. Tanveer is his cousin who had reached at the spot when PW-1 had raised alarm. According to PW-1 Mohd. Tanveer had reached at the spot at the time of incident. However in cross examination dated 05.03.2018 it is deposed by PW-1 that Tanveer was working with his brother for the last 1 year from the day of incident and about 1-2 months after the incident Tanveer left the work of his brother. It is deposed by PW-1 that he does not know the present address of Tanveer. It is again deposed by PW-1 that he is not related with Tanveer nor he visited him. Hence contradictory depositions are made by PW-1 and it is difficult to believe that PW-1 does not know address of his cousin and he does not visit him though Sh. Tanveer had reached at the spot to save PW-1 when PW-1 had raised the alarm. At one place PW- 1 had deposed that Tanveer is his cousin and at other place it is deposed that he is not related to Tanveer. Hence the presence of Tanveer at the spot is itself doubtful. The prosecution has not produced Tanveer as witness in the case.
22. The sketch or description of the scissor is not prepared by the IO. It is deposed by PW-1 in cross examination dated 05.03.2018 that he had not informed about the description of scissor to IO nor he had informed that how the scissor was held State vs. Aminuddin @ Choti & Ors. Page 47 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi by accused No.1 Aminuddin @ Choti @ Kana. The PW-1 had improved his version in that accused No.1 was sitting on a scooter when PW-1 had seen him. The description of scooter is not given by PW-1 to the Investigating Officer. It is deposed by PW-1 that blood had also soaked in his pant which he had handed over to the police. However no such pant was produced in evidence nor examined in investigation. PW-1 had admitted that he had not intimated the position of the accused in the site plan nor about the direction from which accused came or had gone back. If there was so many person and the accused came on scooter then the number of the scooter could be located. However there is no such investigation on the aspect coming or going of the accused on scooter. Other than this 4-5 person cannot sit on a scooter in view of the fact that PW-1 had deposed there was 4-5 persons. It is deposed by PW-1 that no one was present in his house therefore no person from his house came to his help though there are 11-12 members in his family. However it is not deposed that where the family members had went away. the incident pertains to night hours and it cannot be said that at such odd hours the family members could not be present at home around 11:45 PM. Therefore deposition of PW- 1 cannot be believed in this regard. It is deposed by PW-1 that police had reached at the spot within 15 minutes from the time State vs. Aminuddin @ Choti & Ors. Page 48 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi of the incident. At that time PW-1 had gone to his home and Tanveer was with him. Hence as per deposition of PW-1 in cross examination dated 05.03.2018 at page 1 both PW-1 and Tanveer were present at the spot till the police had arrived. The incident had occurred between 11:45 PM to 12:00 midnight. Whereas PW-6 had deposed that when they had reached at the spot then they came to know that injured was taken to LNJP Hospital by one Tanveer. hence as per deposition of PW-6 they could not meet the injured and Tanveer at the spot which is a deposition contradictory to the deposition of PW-1.
23. In such view of the matter it is found that there are numerous discrepancies, improbabilities and contradictions in the story of the prosecution on the basis of which it is held that the prosecution has failed to prove the incident at the spot, the article of offence, the nature of injuries suffered, the manner in which the injuries were inflicted on PW-1 and that how many person have allegedly committed the offence.
24. In view of the discussion held above it is found that the prosecution has failed to prove the offence committed by accused namely Aminuddin @ Choti @ Kana and Mohd. Atif under Section 307/34 IPC. Hence the accused namely State vs. Aminuddin @ Choti & Ors. Page 49 of 50 FIR No.8/2012 U/s 307/34 IPC P. S. Hauz Qazi Aminuddin @ Choti @ Kana and Mohd. Atif are acquitted of the offence charged against them under Section 307/34 IPC. Accordingly, the accused namely Aminuddin @ Choti @ Kana and Mohd. Atif stand 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. 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.
JOGINDER Digitally signed by
Announced in the open court JOGINDER
PRAKASH PRAKASH NAHAR
on dated 24.05.24 NAHAR Date: 2024.05.24
16:21:38 +0530
(JOGINDER PRAKASH NAHAR)
Additional Sessions Judge (FTC-I)
Tis Hazari Court/Delhi/24.05.24
State vs. Aminuddin @ Choti & Ors. Page 50 of 50
FIR No.8/2012
U/s 307/34 IPC
P. S. Hauz Qazi