Delhi District Court
State vs . 1. Reena W/O Sh. Samson John, on 29 September, 2018
1
IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. 1. Reena W/o Sh. Samson John,
2. Aliza D/o Sh. Samson John,
Both R/o H. No. E97, Gali No. 7,
Jai Vihar, Phase1, Najafgarh
Nangloi Road, New Delhi.
● CNR No. : DLSW010013802014.
● Registration No. of the Case : SC/440995/2016.
● SC Number : SC/68/2014.
● FIR Number : 528/2013.
● PS : Najafgarh.
● Under Section : 302/34 IPC.
● Date of Institution : 22.03.2014.
● Case Committed to the Court of
Sessions for : 09.04.2014.
● Case Reserved for Judgment on : 19.09.2018.
● Judgment Announced on : 29.09.2018.
● Final Order : Acquitted.
Page No. 1 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
2
JUDGMENT
FACTUAL BACKGROUND:
1. The following is a brief account of prosecution case and other relevant facts:
1.1 In this case, the FIR was registered on the complaint of Hemant (PW1) on the basis of these facts. On 14.12.2013, his maternal uncle namely Deepak Bijarwal (PW12) was attacked by a boy with a knife and he was robbed of his two mobile phones and wallet and on next date, when he was taking his maternal uncle to doctor, his maternal uncle identified that boy and his name was found to be Jacob @ Gunnu (CCL) and on that day, he ran away after seeing them. However, they did not make any complaint to the police. On 23.12.2013, at about 9.45 pm, his friend Manoj Rawat (since deceased) called him to tell that Jacob @ Gunnu is standing near Bengali Clinic, Jai Vihar, and then he alongwith Akash (PW3) and Mukesh (PW4) went near Bengali Clinic, Jai Vihar, but Jacob @ Gunnu ran away on seeing them.
Thereafter, they chased him and reached near his house i.e. E 97, Gali No. 7, Jai Vihar Phase1, Najafgarh, New Delhi, and Page No. 2 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
3 then Jacob @ Gunnu alongwith his mother (accused Reena) and sister (accused Aliza) came out. Thereafter, the deceased tried to catch hold of Jacob @ Gunnu, but the accused persons intervened and caught hold of the deceased and taking advantage, Jacob @ Gunnu stabbed on chest of Manoj Rawat. Then all of them got freed the deceased from the accused persons, but accused Aliza threatened them that all of them would be implicated in a false rape case and further Jacob @ Gunnu banged his head against the wall and told them that they had hit his head with an iron rod. Further, Jacob @ Gunnu also inflicted injuries to Akash and his father with some sharp object. Thereafter, Manoj Rawat was taken to hospital, but he succumbed to his injuries. 1.2 During investigation, both the accused persons were arrested on next day and blood stained clothes were also recovered.
2. The case of Jacob @ Gunnu was referred to JJBII.
3. After culmination of investigation, both the accused persons were chargesheeted and produced before the Court of Ld. Area MM. After complying with the provisions of Section 207 Page No. 3 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
4 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
TRIAL PROCEEDINGS:
4. In light of the above stated facts and proceedings, vide order dated 21.05.2014, Ld. Predecessor framed charge under Section 302/34 IPC against both the accused persons, to which they pleaded not guilty and claimed trial.
5. For proving its case, prosecution has examined 25 witnesses.
5.1 PW1 Hemant, PW3 Akash and PW4 Mukesh were examined as eye witnesses of the case to prove the incident. PW1 further proved his complaint Ex.PW1/A. 5.2 PW10 Budhi Ballabh Khanduri and PW12 Deepak Bijarwal were examined as corroborating witnesses to prove the events happening prior to and after the incident. 5.3 PW2 Dr. S. Das, Medical Officer, Forensic Department, RTRM Hospital, J.P. Kalan, New Delhi, was examined to prove postmortem report Ex.PW2/A. He further proved sketch of knife Ex.PW2/B and his subsequent opinion Ex.PW2/C. Page No. 4 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
5 5.4 Rest of the witnesses were formal or related to the investigation of the case.
6. Statement of the accused persons was recorded u/s 313 CrPC. When the accused persons were briefed on all the incriminating ocular and documentary evidence, they denied the allegations and mentioned that at the time of incident, they were present inside their house and on next day, they came to know about the alleged murder.
7. Both the accused persons opted not to lead evidence in their defence.
APPRECIATION OF EVIDENCE:
8. I have heard the State through Sh. Girish Kr. Manhas, ld. Additional PP and both the accused persons through ld. counsel Sh. Ajay Sinha. Case record is also gone through.
9. Ld. Additional PP summed up that all three eye witnesses have proved the fact of murder of Manoj Rawat committed by both the accused persons, in furtherance of Page No. 5 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
6 common intention with Jacob @ Gunnu (CCL). On the other hand, ld. defence counsel argued that the accused persons have been falsely implicated in this case. It is further mentioned that number of discrepancies have been found in the testimony of the eye witnesses and moreover, the recovery proceedings relating to the blood stained clothes of the accused is highly doubtful.
10. In this case, there are following important points of determination:
(A) Whether accused persons Reena and Aliza were present at the place of incident, where Manoj Rawat was stabbed;
(B) Whether the accused persons had formed common intention with Jacob @ Gunnu (CCL) for committing murder of Manoj Rawat; and (C) Whether Manoj Rawat was murdered in furtherance of aforesaid common intention.
11. To establish its case, the prosecution has examined three eye witnesses of the incident i.e. Hemant (PW1), Akash (PW3) and Mukesh (PW4). It is observed that all three of them Page No. 6 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
7 deposed that they alongwith deceased Manoj Rawat reached at Bengali Clinic on 23.12.2013, at about 9.3010.00 pm, and on seeing them, Jacob @ Gunnu ran away from there and thereafter, they chased him. It is further mentioned that thereafter, they went house of Jacob @ Gunnu in his search and then he came out alongwith both the accused persons. They further deposed that when the deceased went near Jacob @ Gunnu and caught hold of him, then both the accused persons caught hold of Manoj Rawat by both his hands and then Jacob @ Gunnu stabbed on the chest of Manoj Rawat. All of them also testified that thereafter, Jacob @ Gunnu struck his head against wall and they were threatened by the accused persons that they would be falsely implicated in rape case. They further testified that thereafter, PW1 and PW3 took injured Manoj Rawat to Nirmala Hospital on their motorcycle and from there, PW1 called the police at phone no. 100 from his mobile phone and thereafter, PCR took the injured to RTRM Hospital, where Manoj Rawat succumbed to injuries. Thus, it is found that all the three eye witnesses are consistent in defining the role of the accused persons during their examination in chief.
Page No. 7 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
8
12. However, on consideration of cross examination of aforesaid three witnesses, number of contradictions, improvements, inconsistencies and different version come out on record.
13. During cross examination, complainant Hemant (PW1) mentioned that when Jacob @ Gunnu was caught hold of by the deceased, he raised alarm "bachaobachao" and then 7 more persons including one male reached there. Further, few of them had also caught hold of Akash (PW3) and Mukesh (PW4). Complainant further mentioned that when Manoj Rawat caught hold of Jacob @ Gunnu against the wall of the house, he told them that Jacob @ Gunnu was trying to bring out a knife from his pocket and then he went near Jacob @ Gunnu and caught hold of his right hand, but after sometime, Jacob @ Gunnu was able to get freed his hand and after sometime, two ladies came there and they were able to save Jacob @ Gunnu from the hands of Manoj Rawat and further one of them caught hold of Manoj Rawat from backside and second caught hold of Manoj Rawat from right hand side. He further mentioned that then Jacob @ Gunnu came in front of Manoj Rawat and in the meantime, other Page No. 8 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
9 two ladies came in front of him and they caught hold of his hands. He further mentioned that Manoj Rawat was caught hold of from backside by mother of Jacob @ Gunnu i.e. Reena, but he does not know the lady, who caught hold of him from his right side. The complainant has also mentioned that at that time, the mother of Jacob @ Gunnu i.e. accused Reena was shouting "chhodochhodo, jhagda mat karo". He further mentioned that he cannot say as to what was done by accused Aliza at the spot.
14. During his cross examination, Akash (PW3) deposed that they intended to catch Jacob @ Gunnu and to take back robbed articles from him and when Manoj Rawat caught hold of Jacob @ Gunnu and held him against wall of the house, Jacob @ Gunnu raised alarm "bachaobachao" and on this, one male and 67 ladies came out from their houses and reached there. He further stated that out of the said ladies, two caught hold of him and one lady caught hold of Manoj Rawat. He further replied that he alongwith Manoj Rawat remained in the grip of the said ladies for about 1015 minutes and though he did not make any attempt to free himself, but Manoj Rawat was trying to come out of their grip. PW3 further deposed that mother of Jacob @ Gunnu Page No. 9 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
10 i.e. accused Reena had caught hold of both hands of Manoj Rawat and she was standing just in front of Manoj Rawat.
15. Mukesh (PW4) testified during his cross examination that the place, where Jacob @ Gunnu was caught hold of by Manoj Rawat, was under dark and it was difficult to identify face of any person there. He further mentioned that when they went forward towards Manoj Rawat, three ladies reached there in support of Jacob @ Gunnu and one lady caught hold of him and other two ladies caught hold of Manoj Rawat. It is further stated that the public persons had gathered at the spot on hearing the shouts "is ladke ko chaku lag gaya hai, khoon nikal raha hai"
(this boy has been stabbed, he is bleeding) and he came to know about stab injury only after hearing the voice of people. He further mentioned that on hearing the voices, he went to the place where Manoj Rawat was lying and after switching on of a bulb, he saw that accused Aliza had caught hold of him from his back and that coaccused Reena alongwith another lady were holding deceased Manoj Rawat. He further replied that he did not see any knife or any other thing in the hands of the accused persons. Further, he mentioned that he did not know the house Page No. 10 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
11 of the accused persons and he did not know the entry and exit of the accused persons at and from the place of incident.
16. In light of aforesaid evidence, it becomes clear that both the accused persons were present at the spot at the time of incident. Moreover, it is pertinent to mention here that the defence side has not tried to challenge the testimony of the eye witnesses regarding presence of the accused persons at the place of incident and rather suggestion was given to PW3 and PW4 that both accused had come at the spot for the rescue of Jacob @ Gunnu, who had been beaten by the said witnesses.
17. It is also admitted position that the deceased was stabbed by Jacob @ Gunnu and the only role assigned to the accused persons is that they had caught hold of the deceased when the fatal knife blow was given by Jacob @ Gunnu. Since it is clear that no direct act on the part of the accused persons had resulted into the death of Manoj Rawat, they can be punished for the offence of his murder only by invoking Section 34 IPC and in other words, if requirements of the provision u/s 34 IPC are satisfied, then the accused persons can be held vicariously liable Page No. 11 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
12 for the offence committed by Jacob @ Gunnu. In view of this, the important issue to be decided in this case is whether the aforesaid evidence is sufficient to form an opinion that above mentioned participation of the accused persons in the aforesaid crime is enough for invoking Section 34 of IPC.
18. The law on this issue has been laid down in the decision given by Supreme Court of India in case titled "Pandurang, Tukia & Bhillia Vs. State of Hyderabad", (1955) 1 SCR 1083, in following words:
"33. Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a prearranged 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 Vs. King Emperor", AIR 1945 PC 118. 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 prearranged 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 Vs. King Emperor", AIR 1925 PC 1 and "Mahbub Page No. 12 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
13 Shah Vs. King Emperor". 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 prearranged plan however hastily formed and rudely conceived. But prearrangement 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.
35. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack, not even immediately before. Pandurang is not even of the same caste as the others. Bhilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and prearrangement, or a running away together in a body or a meeting together subsequently. But, to quote the Privy Council again, "the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".
But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct Page No. 13 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
14 proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (Sarkar's Evidence, 8th edition, page 30)."
Further, the requirements of invoking Section 34 of IPC were discussed by Supreme Court of India in case titled "Suresh Vs. State of UP", (2001) 3 SCC 673, wherein it was held as under:
"38. Section 34 of the Indian Penal Code recognises 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 Page No. 14 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
15 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.
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by 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 Vs. 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."
19. In light of the legal position discussed above, it is Page No. 15 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
16 required to be analyzed whether and to what extent the constructive criminal liability u/s 34 IPC can be fastened on the accused persons for causing death of Manoj Rawat. A prearranged plan and the meeting of minds to commit a particular offence is the prerequisite to infer common intention and such prior concert can be inferred from the conduct of the accused revealing unity of purpose and the part played by them at the time of occurrence, the injuries inflicted and the other relevant factors [refer: "Preetam Singh & Others Vs. State of Rajasthan", (2003) 12 SCC 594]. Now, coming to the case in hand, it can be seen that there is no evidence to show that there was any prior meeting of minds of the accused persons with Jacob @ Gunnu. None of the eye witnesses had alleged that the accused persons had said or done anything to show that they were interested in killing Manoj Rawat with the help of Jacob @ Gunnu. Admittedly, the accused persons were not carrying anything at the time of incident.
20. After going through the aforesaid cross examination of the eye witnesses, it becomes evident that apart from the accused persons, several other local residents had gathered at the spot at Page No. 16 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
17 the time of incident. Further, it is also clear that apart from deceased Manoj Rawat, all the three eye witnesses were also caught hold of by some of the persons gathered there. On the basis of evidence of said witnesses, it also becomes clear that prior to alleged act of stabbing done by Jacob @ Gunnu, a brawl had taken place between deceased Manoj Rawat and Jacob @ Gunnu and then the accused persons alongwith other local residents came there and tried to pacify both the sides after catching hold of the deceased and the eye witnesses and all this happened for at least 1015 minutes. Moreover, the statement of the complainant that accused Reena was shouting "leave Jacob @ Gunnu, don't quarrel" clearly suggests that she was not having any mensrea to commit any offence. Had she intended to commit murder of Manoj Rawat pursuant to a preplanning alongwith coaccused and Jacob @ Gunnu, she could have instigated or provoked Jacob @ Gunnu for committing the final act of stabbing done by him, but evidently, she did not participate in the crime of murder in any such manner. It is pertinent to mention here that the prosecution has not been able to bring on record any material to even prove that the accused persons were aware Jacob @ Gunnu was carrying knife at the Page No. 17 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
18 time of grappling. In view of this Court, since the deceased and the witnesses were the aggressor side and they had chased Jacob @ Gunnu till the place of incident and had caught hold of him, it was quite natural and usual for the family members of Jacob @ Gunnu and other local residents to come for the rescue of Jacob @ Gunnu when he raised alarm "bachaobachao".
21. Further, it was emphasized by the prosecution side that both the accused persons, immediately after the stabbing, threatened the witnesses that they would be falsely implicated in a rape case and their this conduct is sufficient to draw an inference that they wanted to save Jacob @ Gunnu and had acted in furtherance of prior concert between them. Regarding this issue, it is evident that in the FIR, it has only been alleged that only accused Aliza had extended threats and even PW3 and PW4 have also deposed to that effect. However, the complainant had testified that both the accused persons had extended threats and his testimony on this aspect is clearly in contradiction with the prosecution case. Now, as discussed above, since accused Aliza was not catching hold of the deceased, but PW4, the aforesaid threat on her part is of no significance for the purpose of Page No. 18 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
19 invoking Section 34 IPC. Even if the allegation of threat given by accused Aliza is accepted on its face value, that appears to be her natural reaction to save her brother Jacob @ Gunnu after finding that he had injured the deceased and that in no manner can be said to be the result of the common intention of the parties. It is true that prior concert and arrangement can be determined from the subsequent conduct of the accused persons, but the prosecution evidence led against the accused persons in this case does not indicate in any manner that at the time of or after the act of stabbing, the accused persons and Jacob @ Gunnu said anything, which would reveal their systematic plan of killing the deceased or that they ran away together or that they met together subsequently indicating their common intention.
22. Further, ld. Additional PP laid stress on the evidence related to recovery of blood stained clothes of accused Aliza vide memo Ex.PW18/A and the forensic reports Ex.PW24/1 and Ex.PW24/2 showing presence of blood of the deceased on her clothes. Though ld. defence counsel seriously challenged the recovery proceedings on the ground that the recovery was allegedly done more than 12 hours after happening of incident Page No. 19 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
20 and further that the accused cannot be considered so unwise that she would opt to wear the blood stained clothes despite having sufficient time and opportunity to dispose of the said clothes, but even if the evidence qua said recovery is accepted, that in itself, in view of this Court, is not sufficient enough to show that the accused had formed common intention with real culprit Jacob @ Gunnu. Since accused Aliza was present at the spot at the time of stabbing and accused Reena was even catching hold of the deceased at the time of stabbing, smearing of clothes of accused Aliza with the blood of the deceased cannot be seen very suspiciously and rather appears to be the result of grappling that took place at the time of incident.
23. In view of discussion made above, it can be safely concluded that the accused persons had no common intention with Jacob @ Gunnu for the purpose of committing murder of Manoj Rawat. In other words, the act of stabbing of the deceased by Jacob @ Gunnu was his individual act and the accused persons cannot be held liable for that. This opinion of the Court is fortified by the decision of Supreme Court of India given in the case titled "Ramashish Yadav & Others Vs. State of Bihar", Page No. 20 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.
21 (1999) 8 SCC 555, wherein it was found that two appellants, who had caught hold of the deceased, cannot be said to have shared the common intention with other appellants, who had gave fatal blows on the head of the deceased with "gandasaa".
CONCLUSION:
24. For the aforesaid reasons, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against both the accused persons. Accordingly, both the accused persons Reena and Aliza are ordered to be acquitted in this case.
Announced in the open Court Digitally signed
on 29th day of September 2018. VIVEK by VIVEK
KUMAR GULIA
(total 21 pages)
KUMAR Date:
GULIA 2018.09.29
15:33:36 +0530
(VIVEK KUMAR GULIA)
ASJ03 & Special Judge (Companies Act)
Dwarka Courts (SW), New Delhi.
Page No. 21 of 21. State Vs. Reena & Another;
FIR No. 528/13 of PS Najafgarh.