Delhi District Court
State vs . Mahavir Singh & Ors. on 1 May, 2023
IN THE COURT OF SH. AYUSH SHARMA, MM-02, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
STATE Vs. MAHAVIR SINGH & ORS.
FIR NO. 255/2012
PS: KANJHAWALA
U/S : 323/341/452/34 IPC
Date of institution of the case : 12.12.2013
Date of judgment reserved : 13.02.2023
Date of commission of offence : 23.11.2012
Name of the complainant : Sh. Manoj Kumar S/o Sh. Ray Singh
R/o VPO Nagola Khas, Hapur, UP and also at
VPO, Majra Chandpur, Delhi.
Name of accused and address : Mahavir Singh S/o Lt. Sh. Chandghiram
R/o VPO Chandpur Majra, Delhi.
Tej Ram S/o Sh. Hawa Singh
R/o VPO Chandpur Majra, Delhi.
Sandeep S/o Mahavir Singh
R/o VPO Chandpur Majra, Delhi.
Offence complained of : 323/341/452/34 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 01.05.2023
Final order : All Held guilty/Convicted u/s 323/341/448/34
IPC.
JUDGMENT
I. CASE OF THE PROSECUTION
1. Briefly stated the case of the prosecution is that on 23.11.2012, at around 10.30 pm, all the accused (along with a juvenile) in furtherance of their common intention committed house trespass in the house of the complainant after having made preparation for causing hurt and thereafter wrongfully restrained the complainant Manoj and his wife and caused simple injuries to them. After completion of investigation, police report u/s 173 Code of Criminal Procedure ('CrPC') was filed against accused Mahavir Singh, Tejram and Sandeep for the commission of offences punishable under sections 323/341/452/34 IPC.
State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 1 / 15II. COURT PROCEEDINGS
2. Pursuant to the appearance of the accused persons, they were supplied with the copy of chargesheet in compliance of Section 207 CrPC. Upon hearing the arguments, vide order dated 17.04.2014, charges u/s 323/341/452/34 IPC were ordered to be framed against all the accused persons. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
III. EVIDENCE OF THE PROSECUTION
3. In order to substantiate its case, the prosecution has examined six witnesses in toto. The witnesses cited by the prosecution could be divided in the following categories:
i.) Complainant Manoj ('PW1') and his wife Manju ('PW2').
ii.) Police witnesses: Ct. Krishan Kumar ('PW3'), HC Naresh ('PW4'), ASI Niranjan Singh ('PW5') and SI Naresh Kumar ('PW6').
Complainant Manoj ('PW1') and his wife Manju ('PW2')
4. PW1 Manoj is the principle witness/victim of the present case. He deposed that on 23.11.2012, at about 10.30 pm, he was coming down from the roof of his house after filling water in the night time and at that time accused Mahavir Singh and Sandeep abused him. He further deposed that he went to his room and in the meantime, accused Mahavir Singh, 'P' S/o MS (juvenile), Sandeep and Tejpal forcefully entered his room and started giving beatings to him and his wife. He further stated that thereafter the villagers came there and rescued him and his wife from the clutches of the accused persons. He further deposed that thereafter some one called the police and thereafter the police took him and his wife for medical examination to hospital. He further deposed that his statement Ex. PW1/A was recorded by police and prepared the site plan at his instance. He correctly identified all the accused present in the court.
5. During the course of his cross-examination by Ld. Counsel for defence, he testified that the police met him for the first time in his house. He further stated that the police recorded State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 2 / 15 his statement once in his house at Chandpur in the presence of his landlord Omprakash. He further stated that the police had also recorded the statement of the landlord Omprakash. He further deposed that he does not know whether there was marriage in the house of accused persons or not. He further stated that he does not remember whether he had signed his statement after reading it or not. He denied that accused Mahabir Singh and Sandeep did not abuse him and no quarrel took place between him and the accused persons. He further denied that he has wrongly implicated the accused persons in the present case.
6. PW2 Manju is the wife of the complainant and also an injured witness in the present case. She deposed that she does not remember the exact date and month of the incident but it occurred in the year 2012. She stated that her husband used to fill water in night and when he was coming down from the roof, accused persons started abusing her husband. She further deposed that when her husband came to room and put the lashes of the door, all the accused persons along with their relatives forcefully entered into the room and started beating them. She further deposed that they raised the alarm and thereafter the neighbors rescued them. According to the witness, the police officials thereafter took them to hospital and recorded her statement. She further stated that along with the accused persons juvenile 'P' was also present.
7. In her cross-examination by the Ld. Counsel for defence, PW2 deposed that her statement was recorded by the police officials in the PS at about 10.30 pm. She further stated that they were alone in the PS when her statement was recorded in the PS. She further testified that thereafter the police never contacted her nor her supplementary statement was recorded. She denied that no quarrel took place between her and the accused persons. She further denied that the accused persons have been falsely implicated in the present case.
Police witnesses
8. PW3 Ct. Krishan deposed that on 23.11.2012, he received the information of apprehension of one thief at Chandpur Village and accordingly, he reduced the said information in the Rojnamcha Register and prepared DD No. 91 B Ex. PW3/A. He further deposed that he State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 3 / 15 handed over the same Ct. Naresh for further investigation.
9. This witness was not cross-examined by Ld. Counsel for defence despite opportunity being given.
10. PW4 HC Naresh Kumar deposed that on 23.11.2012, upon receipt of DD No. 91 B, he along with PW6 went to the spot i.e. at the house of complainant Manoj PW1 at Village Chandpur, Delhi where they met the complainant and recorded his statement Ex. PW1/A. He further deposed that thereafter, PW6 prepared the rukka and handed it over to him for getting the FIR registered. According to the witness, he accordingly did so and returned to the spot and handed over the copy of FIR and original tehrir to PW6. He further stated that PW6 prepared the site plan Ex. PW4/A at the instance of PW1 and on 24.11.2012, at about 6.00 am, accused Tejram, Sandeep and Mahavir were arrested vide arrest memos Ex. PW4/B to Ex. PW4/D. He further deposed that all the accused persons were personally searched vide memos Ex. PW4/E to Ex. PW4/G. He correctly identified all the accused persons in the court.
11. In his cross-examination by Ld. Counsel for defence, PW4 deposed that he does not remember whether he had made any departure entry before leaving the PS. He further deposed that the distance between PS Kanjhawala and Village Chandpur is about 3 Kms and the same is a residential area. He further stated that he does not remember whether public persons had gathered at the spot and PW6 had asked them to join the investigation. He further disclosed that he went at 1.00 am for getting the FIR registered and does not remember the name of the duty officer. He denied that he had not joined the investigation in the present case.
12. PW5 ASI Niranjan Singh deposed that on 24.02.2013, the present case was marked to him for further investigation and he prepared the charge sheet and thereafter deposited it with MHC (R) due to his transfer.
13. In his cross-examination by Ld. Counsel for defence, PW5 deposed that he does not remember the date and month when he had prepared the charge sheet. He further stated that he does not have any personal knowledge about the case. He denied that he is State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 4 / 15 deposing falsely.
14. PW6 SI Naresh Kumar deposed that on 23.11.2012, on receipt of DD No. 91 B regarding theft, he along with PW4 went to the spot i.e. Village Chandpur where he met PW1 and on enquiry, he told him that no theft has taken place and accused Mahavir and his sons had entered into his house and beaten him and his wife. He further stated that he recorded the statement of complainant Ex. PW1/A and thereafter got them medically examined. He further disclosed that he had also prepared the rukka Ex. PW6/A and handed it over to PW4 for getting the FIR registered, who accordingly did so and returned to the spot where he along with one WCt., PW1 and PW2 was present after getting them medically examined. He further disclosed that he thereafter prepared the site plan Ex. PW4/A at the instance of the complainant and recorded the statement of witnesses. He further deposed that he tried to search for independent witnesses, however, no one was found there as it was night. He further disclosed that thereafter he arrested the accused Tejram, Mahavir and Sandeep vide memos Ex. PW4/B to Ex. PW4/D and prepared their personal search memos Ex. PWE to Ex. PW4/G. He further disclosed that an apprehension memo was prepared with regard to juvenile and thereafter his custody was handed over to his uncle. He further stated that he handed over the file after his transfer to MHC (R). He has correctly identified all the accused in court.
15. In his cross-examination by Ld. Counsel for defence, PW6 admitted that DD entry 91B is regarding theft in which no name of the thief has been mentioned. He further accepted that name of the person who made the call is not mentioned in the DD entry and the house of accused Mahavir has not been any specific mark in the site plan Ex. PW4/A. He further admitted that the place of incident was a residential area and no written notice was served upon any public persons. He denied that he did not conduct the investigation at the spot and no such incident as alleged by the complainant took place.
IV. ADMISSION / DENIAL OF DOCUMENTS
16. Vide separate statement u/s 294 CrPC, accused persons admitted the genuineness MLC No. 20606/12, 20607/12, 20608/12, 20609/12 and 20610/12 of FIR No. 114/2017 Ex. P1 to Ex. P5 respectively. Accordingly, vide order dated 03.09.2022, prosecution evidence State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 5 / 15 ('PE') was closed.
V. STATEMENT / DEFENCE OF THE ACCUSED
17. In the statement recorded under Section 313 CrPC, all the accused persons stated that the present case is a false and fabricated case against them and has been filed in order to grab money from them. All of them had initially opted to lead defence evidence. However, on 3.12.2022, the accused persons stated that they do not want to lead defence evidence and accordingly, vide order dated 3.12.2022, Defence Evidence ('DE') was closed.
VI. SUBMISSIONS OF PARTIES
18. Sh. Dinesh, Ld. APP for State has submitted that PW1 and PW2 has given a consistent account of the happening/occurrence and therefore there is sufficient evidence on record to convict the accused persons. He has further submitted that there is no enmity that has been shown by the defence for falsely implicating the accused persons in the present case.
19. Sh. Naresh Dahiya, Ld. Counsel for accused persons has submitted that the accused persons have been falsely implicated in the present case. He has further submitted that the DD entry 91 B is regarding theft and not with respect to any quarrel which is alleged to have taken place. He has further submitted that no independent witness have been cited by the prosecution to prove its case against the accused and therefore, the accused persons should be given benefit of doubt.
VII. APPRECIATION OF EVIDENCE: ANALYSIS AND FINDINGS
20. I have heard the submissions of Ld. APP and the Ld. Counsel for accused persons and perused the record along with the written submissions filed by the accused persons. Before appreciating the evidence and deciding the question whether the charges have been proved against the accused persons, it would be apt to take note of the decision of Hon'ble Supreme Court in Munna Lal v. State of UP 2023 SCC Online SC 80, wherein 'settled principles' of criminal law have been quoted as:
"28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 6 / 15 relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into 'settled principles of law'. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-
recognized maxim that evidence has to be weighed and not counted. In other words, it is the quality of 14 evidence that matters and not the quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction.
(b). Generally speaking, oral testimony may be classified into three categories, viz.:
(i) Wholly reliable;
(ii) Wholly unreliable;
(iii) Neither wholly reliable nor wholly unreliable.
The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s). However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non- examination would not render the prosecution case fatal.
(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance."
State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 7 / 1521. This court shall now examine the evidence of the prosecution witnesses against the accused persons. Among the factors, which inclines this court to believe the case of the prosecution may be enlisted the following:
a) PW1 and PW2 in their deposition has been consistent and very clear in not only pointing out the accused persons who were involved in the incident but also what was done with them and how they were saved by the neighbors. Both the complainant/PW1 and injured PW2 are consistent that on the day of incident, when PW1 came down from the roof after filling water in the tank, accused Sandeep, Mahavir and Tejpal along with juvenile 'P' forcefully entered their room and gave beatings to them after restraining their way. The identity of the accused persons has been sufficiently proved as both PW1 and PW2 had correctly identified the accused persons. Nothing has emerged in the cross-examination of PW1 and PW2 which could shake their credibility and force this court to disbelieve their testimony. Nothing has been brought forth by the defence to substantiate any reason/motive on their part to concoct a false claim against them. Thus, the testimony of PW1 and PW2 when evaluated in broad probabilities is cogent, clear and inspires the confidence of this court.
b) The factum of the hurt/injuries having been caused to PW1 and PW2 have also been sufficiently proved vide MLCs No. 20609/12 and 20610/12 Ex. P4 and Ex. P5 respectively which have been admitted by the accused persons u/s 294 CrPC and are also corroborated by the ocular testimony of PW1 and PW2. The MLC of PW1 Ex.
P5 reflects abrasion on right parietal region whereas the MLC of PW2 Ex. P4 reflects that she received abrasion over her right forearm and no evidence has come on record to disbelieve that these injuries were not inflicted in the manner as pointed out by PW1 and PW2 in their depositions. In State of Uttar Pradesh v. Naresh & Ors. (2011) 4 SCC 324, the Hon'ble Supreme Court held:
"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 8 / 15 and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for commission of the offence. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab [(2009) 9 SCC, 719, Balraje v. State of State of Maharashtra (2010) 6 SCC 673 and Abdul Sayeed v. State of M.P. (2010) 10 SCC 259.]
c) The police witnesses viz. PW4 and PW6 are also consistent in their depositions.
Minor discrepancies as to the timings or being not able to recollect certain facts of the investigation are immaterial and do not go to the root of the case once the testimony of PW1 and PW2 is found to be reliable and trustworthy. Merely because independent witnesses have not been cited does not mean that their evidence has to be rejected more particularly when no hostility or animosity of the police or the injured witnesses with the accused persons has been shown by the defence. Thus, it would not be proper for this court to distrust them and hold them in suspicion without any good grounds to do so. In State of UP v. MK Anthony AIR 1985 SC 48, the Hon'ble Supreme Court observed:
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 9 / 15 technical error committed by the investigating officer not going to the : root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
d) It has been argued by Ld. counsel for accused persons that the DD entry 91 B is in relation to theft and not with regard to any quarrel. Significantly, the DD entry has been recorded by the DD writer and has been recorded at the instance of some one else who called the police at the time of occurrence as stated by PW1 in his testimony. This cannot be a reason for this court to disbelieve the ocular version of the PW1 and PW2 who have deposed in one voice regarding the complicity of the accused persons in the offence. In this context, when one views the evidence holistically, there appears to be no inconsistency which may affect the case of prosecution against accused persons.
e) The facts emerging on record are interdependent and connecting the accused persons with offence (s) committed against the complainant and his wife. Moreover, accused persons have failed to give any satisfactory response to the incriminating evidence and the circumstances found against them, which clearly points to their complicity of the offence (s) in the present matter. The accused persons have also failed to adduce any evidence in their defence to create a doubt in the version of the prosecution.
22. The facts having been duly proved by the prosecution, it will now have to be seen whether the same are sufficient to prove the charges framed against the accused persons.
State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 10 / 15SECTION 452 IPC
23. To establish a charge under Section 452 IPC, the prosecution must prove i) that the accused committed house trespass as defined in Section 442 IPC of the IPC ii) that the said house trespass was committed after the accused made preparation for causing hurt to, or for assaulting or for wrongfully restraining some person or for putting some person in fear of hurt, assault or wrongful restraint.
24. The prosecution has relied upon the testimony of PW1/complainant and PW2 to prove the charge of Section 452 IPC. It has been argued by Ld. Counsel for defence that the testimony of PW1 is in variation as in the initial statement Ex. PW1/A, he had stated that accused Sandeep jumped the wall of his house and thereafter opened the lashes of the door paving the way for the remaining accused to enter the house whereas in his evidence before the court, PW1 and PW2 have not stated anything with respect to the same and therefore the it cannot be inferred that the accused persons had entered the room of the complainant after having made preparation of causing hurt. It has emerged in the evidence of PW1 and PW2 that when PW1 had gone for filling the water in the tank, a quarrel ensued and accused persons started abusing him and when PW1 came down to his room, the accused persons forcefully entered the room and started beating PW1 and PW2. Examining the evidence of PW1 and PW2 in the light of the statutory provision and the argument of Ld. Counsel for defence, there is no material to indicate that the accused persons had entered the room of the complainant after having made preparation of causing hurt, or for assaulting or for wrongfully restraining some person or for putting some person in fear of hurt, assault or wrongful restraint. The quarrel having ensued all of a sudden when the complainant had gone to his roof for filling the water in the tank and immediately thereafter the accused persons entered the room and assaulted the complainant and his wife, does not suggest that the accused persons had made any preparation for causing hurt to the complainant and his wife. For a conviction under Section 452 IPC, it is necessary to prove that the dominant intention of the accused was to cause hurt while committing house trespass and the same was committed after making preparation for the same. The fact that a person enters another person' s house and commits an assault, does not necessarily presuppose such preparation because it may be a case of post hoc ergo propter hoc (Dal Chand v. State of Rajasthan 1966 CrLJ 236). In State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 11 / 15 Ajaybhai Dattaraya Gajjar v. State of Gujarat 2010 SCC Online Guj 4854, the Hon'ble Gujarat High Court held:
"13. Examining the facts of the case in the light of the aforesaid statutory provision, considering the evidence of the complainant as well as the witnesses, even if the depositions of the witnesses are accepted as absolutely true and correct in their entirety, it is apparent that the case against the accused is to the effect that firstly on account of certain remarks uttered by the fourth accused, a quarrel ensued, pursuant to which, all the accused entered the house of the complainant and had assaulted her. There is not even an iota of evidence indicate that the accused had entered the house after having made preparation for causing hurt, or for assaulting, or for wrongfully restraining the complainant or other witnesses, or for putting the complainant or other witnesses in fear of hurt, or of assault, or of wrongful restraint as envisaged under section 452. The evidence on record indicates that an altercation took place all of a sudden, when the complainant protested against the remarks made by the accused No.4, which resulted in the accused assaulting the complainant and Dakshaben. The quarrel having taken place all of a sudden, it is not possible to infer that the accused had made preparation for causing hurt to the complainant and Dakshaben. As noted hereinabove, for the purpose of invoking section 452, the both the requirements noted hereinabove are required to be satisfied. In the facts of the present case though the accused can be said to have committed house trespass, the other requirement regarding preparation to cause hurt is not satisfied. In the circumstances, in absence of the basic requirements of section 452 being satisfied, the conviction of the applicants under section 452 IPC cannot be sustained. This view finds support in the decision of the Patna High Court in Chandra Bhushan Dubey (supra) wherein it has been held that section 452 contemplates house trespass with previous preparation made for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint and not otherwise. It is the dominant intention which is the determining factor of the offence and unless the dominant intention was to cause hurt or wrongful restraint or any fear of either, the provisions of the section would not be attracted, even if some hurt is actually caused State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 12 / 15 during the course of executing any other purpose, for which trespass was committed. The mischief of the section can be attracted only when it is established that the trespass was committed in order to cause hurt or to assault or to wrongfully confine any person after having made preparations for that purpose.
14. However, on the facts of the case, the requirements of house trespass as envisaged under section 442 IPC stand duly satisfied, hence, the offence punishable under section 448 IPC which provides for punishment of for house-trespass is clearly made out. In the circumstances, the conviction of the applicants under section 452 IPC is required to be altered to one under section 448 IPC."
25. Thus, on the consideration of the evidence, this court is of the opinion that, though the accused persons are liable for committing house trespass, the other requirement regarding preparation to cause hurt is not satisfied. Under these circumstances, the ingredients of the offence under Section 448 IPC are proved beyond reasonable doubt.
SECTION 323 & 341
26. For establishing an offence under Section 323/341, the prosecution is required to prove that accused caused hurt voluntarily to any person (not covered under Section 334 IPC) by obstructing him from proceeding in any direction in which he has a right to proceed. The MLCs Ex. P4 and Ex. P5 of PW1 and PW2 have been proved and are also corroborated by the ocular testimony of PW1 and PW2. No evidence has come on record to disbelieve that these injuries were not inflicted in the manner as pointed out by PW1 and PW2 in their depositions. It has further emerged in evidence of PW1 and PW2 that they when they raised alarm, neighbors came there and rescued them from the clutches of the accused persons.
In the result, the ingredients of the offence (s) under Section 323/341 also stand proved beyond any reasonable doubt.
SECTION 34 IPC (COMMON INTENTION)
27. Significantly, the liability of one person for an offence committed by another in the course State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 13 / 15 of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of the common intention of the persons who join in committing the crime. In Jai Bhagwan & Ors. v. State of Haryana (1999) 3 SCC 102, the Hon'ble Supreme Court held:
"10. To apply Section 34 Indian Penal Code apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."
28. In Goudappa and Ors. v. State of Karnataka (2013) 3 SCC 675, the Hon'ble Supreme Court has reiterated the principle by opining that Section 34 Indian Penal Code lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.
29. In the present matter, it is manifest from the evidence of PW1 and PW2 that all the accused persons accompanied each other and gave beatings to them proves the existence of common intention and attract the constructive liability as engrafted under Section 34 IPC.
State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 14 / 1530. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., 1990(3) S.C.C. 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute.
31. The case of the prosecution against accused persons is cogent and trust worthy and, in the opinion of this court, the prosecution has succeeded in bringing home the guilt of accused persons on the standard of beyond reasonable doubt. As a sequitur of the above discussion, accused Tejram S/o Hawa Singh, Mahavir Singh S/o Late Chandgi Ram and Sandeep S/o Mahavir Singh stand convicted for the offence punishable under Section 323/341/448/34 IPC. Copy of judgment be given of cost to accused persons.
Announced in Open Court on (Ayush Sharma)
1st May 2023 MM-02, North-West District
Rohini Courts/01.05.2023
This judgment consists of 15 pages and each and every page of this judgment is signed by me.
(AYUSH SHARMA) MM-02, NORTH WEST DISTRICT ROHINI COURTS DELHI/01.05.2023 State vs. Mahavir Singh & Ors. FIR No. 255/2012 PS Kanjhawala Page No. 15 / 15