Delhi High Court
Kuldeep Singh vs State (Delhi Admn.) on 27 November, 1998
Equivalent citations: 1999CRILJ985, 1999(48)DRJ568
Author: D.K. Jain
Bench: D.K. Jain
ORDER D.K. Jain, J.
1. This Criminal Revision Petition under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') is directed against the order of the learned Additional Sessions Judge, New Delhi, dated 25 May, 1998, whereby Charge under Section 302/460/380/411 read with 34 IPC was framed against the petitioner and the other two coaccused.
2. On 26 December, 1997, vide DD No. 13, information about commission of theft of B-69, Paschimi Marg, Vasant Vihar, New Delhi was received at Vasant Vihar Police Station. When the police party reached the said premises, dead body of the deceased, Mrs. Sushma Gulati, was found in her bed room on the first floor and the house was found to be ransacked; at the said premises one Ram Kumar, who was working as Manager of the deceased's concern, namely, M/s. Maharaja Exports, was available, who stated that the deceased had left her factory at B-225, Naraina Industrial Area, New Delhi, t 7.30 PM on 24 December, 1997 for her residence; on 26 December, 1997 around 8.15 AM, when he rang up the residence of the deceased and did not et any response, came to her residence at about 9.45 AM when he found that the main gate of the house was open and the deceased was lying dead in her bed room; on seeing the same he informed Shri Baldev Kishan, Advocate, who in turn informed the PCR and relatives o the deceased about the incident. On the basis of the said statement FIR No. 563/97 was registered under Sections 302/460/380/411/34 IPC. The petitioner along with the two coaccused namely. Om Prakash and Ram Singh, were arrested on 1 January, 1998. On completion of investigations, challan was filed against the petitioner and the said two co-accused. According to the charge sheet the petitioner had worked in the factory of the deceased during November 1997 for about 15 days; on 23 December, 1997 the petitioner along with the said co-accused had planned to commit theft in the house of the deceased; in the evening of 24 December, 1997 when ceased returned from her factory, accused Om Prakash and Ram Singh gained entry in her house by scaling the wall but the petitioner did not go with them inside and remained outside the house; after sneaking in they waited for the deceased to sleep; thinking that she had slept the said accused tried to steal the articles when the deceased woke up and on coming to know about this, they strangulated her and also smothered her with the help of her pillow. After committing the murder the petitioner was also called in the house by the said accused and they all committed theft in the house and took away her jewellery, camera etc. The case property (jewellery and other articles) is alleged to have been recovered at the instance of the petitioner and other co-accused from their jhuggis. As per the post mortem report the cause of death was asphyxia, as a result of strangulation associated with smothering with some soft object like pillow.
3. On the basis of the material placed before it, the Trial Court came to the conclusion that a prima facie case was made out against all the three accused under Sections 302/460/380/411/34 IPC as the petitioner had shared the common intention with his co-accused to commit crime; his complicity in the crime was reflected in the thumb impression found on the tin box in the bed room of the deceased; there was also recovery of gold ornaments in pursuance of the disclosure statement made by the petitioner. It is observed that though initially the common intention of all the three accused persons was to commit theft in the house of the deceased b they were in the process of committing theft in her bed room, unfortunately, the deceased woke up and accused Om Prakash and Ram Singh killed her by smothering her with the help of her pillow. Accordingly, the charges were framed against the petitioner and the other two accused under the aforementioned Sections. Against this order the petitioner has come up in revision, seeking quashing of the order.
4. I have heard Mr. Rajinder Kumar, learned counsel for the petitioner and Ms. Neelam Grover, learned counsel for the State.
5. Although in the petition, framing of charge under Section 302 and 460 read with 34 IPC has been challenged but during the course of arguments, Mr. Rajinder Kumar rightly did not contest the charge framed under Section 460 IPC because all the accused intended to commit theft and were present at the site to do so. His main contention is that the petitioner cannot be held vicariously liable under Section 302 IPC for the offence of murder with the aid of Section 34 IPC because there is not an iota of evidence on record to suggest that the act of murder of the deceased was committed in furtherance of the common intention of the accused, including the petitioner, pursuant to a pre-arranged plan to murder her. In support, reliance is placed on two recent decisions of the Supreme Court in Brijlal Prasad Sinha Vs. State of Bihar 1998 (3) Crimes 4 (SC); Ajay Sharma Vs. State of Rajasthan 1998 (4) RCR 438 and a decision of the Andhra Pradesh High Court in Eesarapu Pydiraju Vs. State of A.P. 1998 (3) Crime . It is thus urged that in the instant case as per the prosecution case itself though all the accused had pre-planned to commit theft at the residence of the deceased, there was no pre-arranged plan to murder her.
6. On the other hand it is submitted by Ms. Neelam Grover, learned counsel for the State, that there is ample circumstantial evidence against the petitioner to connect him with the murder of the deceased and it is urged in this behalf that the thumb impressions of the petitioner lifted from certain articles in the house of the deceased are sufficient to prove the presence of the petitioner at the place of occurrence and despite knowledge that the murder of the deceased had been committed, the petitioner, along with his confederates, committed theft and thus, cannot claim to be inno-cent of the charge of murder committed during the pre-planned entire operation. It is urged that even if it is assumed that the petitioner did not actually participate in the commission of the act of strangulation but his presence at the site, coupled with the circumstance of his joining in further operations, with full knowledge of the lady having been killed, make him vicariously liable under Section href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','15817','1');">34 IPC for the offence of murder. In support, reliance is placed on a decision of the Supreme Court in Ramaswami Ayyanger & Ors. Vs. State of Tamil Nadu , where in it was held that for the application of Section 34 IPC, the presence of those who in one way or the other facilitate the execution of a common design is itself tantamount to actual participation in the criminal act, it is also urged that at the stage of framing of charge the Court has not to weigh the evidence to see whether there is sufficient evidence for the conviction of the accused and the only thing to be seen is whether there is a strong suspicion which leads the Court to think that there are grounds for presuming that the accused had committed an offence.
7. Thus, the question for consideration is whether there is some prima facie evidence, direct or circumstantial, on record to frame charge against the petitioner for the offence of murder.
8. I have considered the rival contentions and the authorities cited at the bar.
9. In the instant case, it appears that the object was robbing and during the process, the murder of the lady was actually committed by petitioner's two accomplices, when he was guarding the house for entry of an outsider in the house to facilitate execution of the common design. He is sought to be made vicariously liable under Section 34 IPC.
10. Before a person can be made vicariously liable for the criminal act of another, it is essential that the act must have been done in furtherance of the common intention of them all. A common intention pre-supposes prior concert. As observed in various pronouncements it is difficult to get a direct proof of common intention and normally it has to be inferred from circumstances. It may be that when some persons start with a prearranged plan to commit a minor offence, they do so with an understanding that a graver offence in the process may also be committed or it may also be that while committing the minor offence, they, impelled by the situation arising, come to an understanding to commit a major offence as well. In each case, though the acts of each may be different but all must, in one way or the other, participate in the common design. As observed in Ramaswami Ayyanger's case (supra) the essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring such a particular result. Such consensus can be developed at the spot and there-by intended by all of them.
11. It is in the light of the above broad principle that the preset case is to be examined to see whether there was a prima facie case for framing the charge against the petitioner for murdering the deceased. At the stage of considering the question of framing of charge the Judge has not to weigh the material placed before the Court to see whether it is sufficient to result in the conviction of the accused but is only to consider the allegations and the circumstances appearing for the limited purpose of finding out whether or not a prima facie case against the accused could be made out or not. Having perused the charge sheet and other material available on the record of the Trial Court. I feel that though there is nothing on record in the form of some direct evidence to suggest that the three accused had actually planned or decided to murder the deceased and that all of them had conspired to commit dacoity at her place, but I feel that insofar as the petitioner is concerned, though it cold not be said with certainty that Section 34 IPC would positively apply, there being no direct evidence of pre-arranged plan amongst the accused to commit murder of the deceased, but, there are, as pointed out by learned counsel for the State, some strong suspicious circumstances to connect the petitioner with that offence, legal efficacy whereof cannot be judged at this stage, but would depend on the evidence and circumstances emerging from the trial.
12. The authorities cited by learned counsel for the petitioner, relating to applicability of Section 34 IPC, pertain to matters after trail, in which the question of complicity of the accused had to be determined on the principle of proof beyond doubt, which is not the standard to be applied at the stage of consideration for framing of charge.
13. For the foregoing reasons, I do not find any infirmity of illegality or abuse of the process of the Court in the impugned order warranting interference either in the exercise of revisional jurisdiction or inherent powers of this Court.
14. In the result, the petition fails and is accordingly dismissed.
15. Record of the Trial Court may be sent back forthwith.