Delhi District Court
State vs Naresh And Ors on 5 August, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-011133-2016
SC No. 28831/2016
FIR No. 192/2016
U/s 392/394/397/307/411/34 IPC
P. S. Subzi Mandi
STATE VERSUS NARESH & ORS.
(i) SC No. of the case : 28831/2016
(ii) Date of commission of offence : 25.05.2016
(iii) Name, parentage and address : (1) Naresh @ Nauni
S/o Wazir Chand
R/o H. No.102/4,
Rampura, Mohala
Lal, Sarak Hansi,
Distt. Hisar, Haryana
(2) Manish
S/o Anand Singh
R/o Vagabond, Patri
Mori Gate, Kashmere
Gate, Delhi
(3) Raj Kumar @ Bihari
S/o Ram Narayan
R/o Vagabond, Patri
Ram Niwas Marg, Civil
Lines, Delhi
(iv) Offences complained of : 392/394/397/307/411/34
IPC
State vs. Naresh & Ors. Page 1 of 56
FIR No. 192/2016
U/s 392/394/397/307/411/34 IPC
P. S. Subzi Mandi
(v) Plea of the accused : Not guilty
(vi) Final order : Conviction
(vii) Date of such order : 05.08.24
Date of Institution : 22.08.16
Date of Judgment reserved on : 25.07.24
Date of Judgment : 05.08.24
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Sh.
Amresh Kumar Mishra vide complaint Ex. PW12/A that complainant is working at MKS Company, Sector 3, Rohini. On 25.05.2016 he went to Dabwali, Haryana and he was returning at Delhi around 02:30 AM in the night. When he came out of ISBT, Kashmere Gate, Bus Terminal, then a TSR suddenly came there and stopped near him. The driver had asked that where the complainant has to go. On which, he had replied that the complainant has to go at Nihal Vihar. In the said TSR behind the driver, one person was sitting and another person was sitting with the TSR driver. The TSR driver told the complainant that these persons are going towards Nihal Vihar State vs. Naresh & Ors. Page 2 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi only. The complainant sat on left side of the passenger seat of the person already sitting in the TSR. After some time, the person sitting on front seat came on the back seat and sat on left side of the complainant. When the TSR reached under the flyover, then the TSR driver has stopped the vehicle. The person sitting in the auto had pulled out the complainant out of the TSR. They threatened the complainant that, "give everything whatever you have and not to make noise". When complainant opposed, then the person sitting in the TSR on back seat had come out and strangulated the neck of the complainant while shouting that if the complainant does not give his valuables then they will kill him. In the meanwhile, the TSR driver had hit the stone many times on the head of the complainant. The third person had pulled the purse out of the pocket from the complainant. The purse was containing Rs. 2,500/-, one PAN card, one ATM card of Bank of Baroda, one driving licence, one mobile phone of make Micromax having two sim bearing mobile number 9953125261 and another mobile number is 9650894812. When the complainant was shouting then the passers-by started coming. On which the said three accused started running. One of the accused was caught by the public person and in the meanwhile, police had reached at the spot. The person who was caught at the spot was Naresh. He had caught the complainant from behind. The police had State vs. Naresh & Ors. Page 3 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi registered the FIR Ex. PW2/A on 25.05.2016. The information was received at PS around 05:15 AM on 25.05.2016. The accused Naresh had disclosed name of co-accused Raj Kumar and Manish. At the instance of accused Naresh, the co-accused Manish was arrested from Mori Gate. The co-accused Manish had taken out mobile phone and purse of the complainant. Accused Manish had disclosed that mobile phone was hidden by him at a roundabout in bushes which was recovered at the instance of accused Manish. A five rupee note was also recovered from pocket of accused Manish which was balance out of his share of Rs.1,000/-, the amount looted from the complainant. The accused Manish in PC remand has pointed out at accused Raj Kumar who had hit the complainant with a stone and he is the TSR driver. Accused Raj Kumar, the TSR driver, was arrested from Mori Gate who is a vagabond. Accused Raj Kumar got recovered TSR bearing registration no. DL1RK6992. Under the back seat of TSR, one purse was recovered which found containing driving licence, PAN card. The robbed money was already spent by accused Raj Kumar. Accused Manish and accused Raj Kumar had refused to participate in the TIP. All the accused were charged under Section 307/34 IPC and they were also charged under Section 392/394/397/34 IPC. The charge was given on 06.09.2016. Accused Manish was further charged under Section 411 IPC on State vs. Naresh & Ors. Page 4 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi recovery of mobile phone of make Micromax from his possession with cash of Rs. 500/-, the robbed money. Accused Raj Kumar was further charged under Section 411 IPC as purse, driving license and PAN card of the complainant was recovered from him.
2. Charge-sheet was filed by the IO on which charge was given to all the accused to which they did not plead guilty and claimed trial. The prosecution has got examined PW-1 to PW- 16 as complete evidence against all the accused. SA of accused Naresh was recorded on 22.04.2024, SA of accused Raj Kumar was recorded on 14.05.2024 and SA of accused Manish was recorded on 14.05.2024. All the accused have preferred not to lead evidence in defence. DE of all the accused was closed on 14.05.2024.
3. Final arguments are heard from both the parties and record perused.
4. The accused person were charged under Section 411 IPC.
The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022.
13. Section 411 IPC:
State vs. Naresh & Ors. Page 5 of 56 FIR No. 192/2016U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi "411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. "Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, Mens Rea. This was nicely explained by Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example: "A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief Justice indicated his line of thought, which State vs. Naresh & Ors. Page 6 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to State vs. Naresh & Ors. Page 7 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
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21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property...."
Xxxxxxxx
23. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens Rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."6
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
State vs. Naresh & Ors. Page 8 of 56 FIR No. 192/2016U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi 4.1. Under first ingredient under Section 411 IPC the prosecution has to prove that accused Manish who was found in possession of Rs.500/-, mobile phone of make Micromax recovered from the bushes under the stairs of Mori Gate Gol Chakar, which belong to complainant Amresh Kumar, on 26.05.2016 at Mori Gate Patri near Khoya Mandi. Learned Counsel for the accused has submitted that the said recovery was effected from open public place and it cannot be attributed to the accused. The identification memo of the above recovery is Ex.PW14/G. Accused Manish had made a disclosure that he had a share of Rs.1000/- in the robbed amount out of which Rs.500/- was already spent by him. The allegation of robbery against the accused is a sum of Rs.2500/- which was in the purse. Rs.500/- was handed over by the accused to the police/ IO which was seized vide memo Ex.PW14/A. On the face of it Rs.500/- is a small amount and it can be conveniently possessed by any other person. Without any specific identification of possession of robbed amount it cannot be said that the Rs.500/- handed over by accused Manish to the IO belongs to complainant only.
4.2. The recovery of mobile phone from the bushes of make Micromax from Mori Gate was seized vide memo Ex.P14/B State vs. Naresh & Ors. Page 9 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi and accused Manish was arrested vide memo Ex.PW14/C. His disclosure statement is Ex.PW14/E and personal search memo is Ex.PW14/D. The site plan of such recovery is Ex.PW14/F and the pointing out memo of the phone is Ex.PW14/G. According to the PW-14 the accused had led the investigating team to the place in the bushes where mobile was found. In cross examination it is admitted by IO that there is no identification mark from where the accused Manish was arrested from the road. Bushes were at a distance of 30-40 steps. No shopkeeper was joined in recovery of such mobile phone from the bushes though shops were there nearby. It is deposed by PW-14 that in his presence IO did not ask any public person to join. It is admitted as correct that the public person were available near the spot of recovery or arrest. It is deposed by IO/PW-16 that mobile phone of make Micromax, ATM Card, PAN Card, Driving Licence of complainant Amresh Kumar with currency note of Rs.500/- was recovered on possession of accused Manish and the case property was released to the complainant Amresh Kumar on superdarinama Ex.PW12/C photographs of which are available on record as Ex.PW12/P-1 to Ex.PW12/P-4. Photographs are collectively exhibited as Ex.P-3. It is deposed by PW-16 that Rs.500/- and the phone was recovered from accused Manish. Only in cross examination he had added another document which are PAN State vs. Naresh & Ors. Page 10 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi Card, ID Card and driving licence of the complainant Amresh Kumar. On seizure memo Ex.PW14/B the above documents are not mentioned to have been recovered from the accused Manish. In such view of the matter it cannot be said that the alleged mobile phone was recovered from accused Manish as it was an open space and not in the exclusive custody of the accused and no further link of the accused was proved on record with such place. Hence it cannot be said that the mobile phone of make Micromax was recovered from the accused Manish and hence it is held that the prosecution has failed to prove charge under Section 411 IPC against the accused Manish. Hence the accused Manish is acquitted of the offence under Section 411 IPC.
4.3. The accused Raj Kumar is charged under Section 411 IPC as he has got recovered purse, Driving Licence and PAN Card of the complainant Amresh Kumar on 27.05.2016. The alleged recovery from accused Raj Kumar was done from house No.8636, Barghar Mohalla, Roshanara Road, Delhi on 27.05.2016. A purse, driving licence and Pan Card was recovered. On 27.05.2016 PW-16 with Ct. Navneet /PW-14 and Ct. Ravinder/PW-10 alongwith accused Manish left for investigation. Around round-about of Mori Gate on pointing out of accused Manish the co-accused Raj Kumar was arrested who State vs. Naresh & Ors. Page 11 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi was allegedly the TSR driver. PW-16 had correctly identified the accused in the Court whose disclosure statement is Ex.PW10/A. He was arrested vide memo Ex.PW10/B. His personal search memo is Ex.PW10/C. Accused Raj Kumar led the investigation team of Mohalla Barhgar in front of house No. 8636 and pointed out towards the TSR used in the offence bearing No.DL 1RK 6992. Under the rear seat of TSR were lying a purse containing one Driving Licence, Pan Card in the name of Amresh Kumar/PW-12. The owner of TSR Mr. Ashok Gupta /PW-7 had deposed that he is the owner of the said TSR and gave it on rental basis to the accused Raj Kumar. The TSR was parked near his house keys of which he had handed over to IO. He got the TSR released on superdari on 09.06.2016. The TSR is Ex.PX and the photographs are Ex.PW7/A1 to Ex.PW7/A5. Unimpeached evidence has come on record to show that such TSR was given to accused Raj Kumar by PW-7 on rental basis. Vide statement dated 21.02.2018 from learned LAC for accused Raj Kumar whereby the accused has no objection regarding identity of the TSR and that accused will not dispute the identity of the TSR during the entire trial. Similarly is the statement by learned LAC for accused Naresh @ Nauni and accused Manish on the same date. The leather purse was got recovered under the rear seat of the TSR which was found containing one driving licence and PAN card of the State vs. Naresh & Ors. Page 12 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi victim Amresh Kumar/PW-12. It is deposed by PW-12 in examination in chief dated 19.09.2019 that one of the assailant had forcibly taken his wallet containing ATM card of Bank of Baroda, PAN card, Driving licence etc. Out of the above items the driving licence and PAN card were got recovered from the said purse and the purse was lying under the back seat of the TSR. Hence the property which was stolen in terms of complaint Ex.PW12/A was recovered from accused Raj Kumar who had possession of TSR. The said ATM card of Bank of Baroda, Driving licence and PAN card were seized vide memo Ex.PW10/D and they belong to PW-12/ complainant. The rightful owner of above items and purse is PW-12. PW-12 has deposed that this property was stolen from him from point A in site plan Ex.PW16/B and at point B the accused Naresh was caught while running away. Learned Counsel for accused has submitted that vide DD No.3 PP Ex.PW3/A the incident was reported by HC Raju at House No.3807, Sora Kothi, Kali Mata Mandir Subzi Mandi Delhi. It is submitted by learned Counsel for accused that this incident at point A is not the same place in the site plan which was reported in Ex.PW3/A. Therefore doubt is created about the place of incident where the offence was committed. It is noted that Ct. Raju was not produced in witness box. Further Ct. Raju was not the first person to reach at the spot. As per the deposition of PW-12 during the commission of State vs. Naresh & Ors. Page 13 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi incident the police person had reached there. PW-5 Ct. Vikram had deposed that when he alongwith IO/ ASI Yogender Kumar reached at Pillor No. 3 opp. Subzi Mandi, Mortuary, Burfkhana, where Ct. Satish and Ct. Umed were present and produced accused Naresh @ Nauni before them. Ct. Satish Chand /PW-6 had deposed that he and Ct. Umed Singh /PW-9 were on patrolling duty on Government motorcycle. When they reached near the flyover Burfkhana near Queensmary School then they heard the noise of "Pakro- Pakro" and had found public person apprehended one person and other person was injured who was bleeding from his head and face. The injured had stated that the apprehended accused with his associate had dropped him there after giving beating and giving a hits by stone on his head. PW- 9 had deposed that they were on patrolling duty from 11:00 PM to 5:00 AM and they heard the sound "Pakro-Pakro" around 3:15 AM when they were going towards Queensmary School from Burfkhana side. Boys were coming under the flyover where public persons were gathered. Injured Amresh / PW-12 was found there who was bleeding from his head and face. The injured had informed that accused Naresh had robbed him and had beaten him.
4.4. The Driving Licence and PAN card recovered from the TSR belong to PW-12 the complainant and there is no dispute State vs. Naresh & Ors. Page 14 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi about it and it remains as an admitted fact. The PW-12 has proved in his deposition that the above articles were in his wallet which were forcefully taken out by one of the assailant. The accused Manish had forcefuly taken out his mobile phone and wallet. However the articles were recovered from the TSR which were in possession of accused Raj Kumar and Raj Kumar was the driver of the TSR. The incident had taken place between 2:30 AM to 3:00 AM. Hence the prosecution has successfully proved that the property recovered from accused Raj Kumar from his TSR belongs to the complainant /PW-12 which was robbed from him on 25.05.2016 around 2:45 AM and which was recovered from accused Raj Kumar from his TSR on 27.05.2016. Hence the accused Raj Kumar is not the rightful owner of the said property and had retained it dishonestly and he had sufficient reason to know that it was a stolen property.
4.5. Learned Counsel for the accused has submitted that no public witness was joined by the IO at the time of recovery or arrest of the accused. IO did not ask from any shop nearby or from Court complex to join the investigation. IO had admitted that public person were gathered near the spot of recovery and arrest. However it is denied that he did not ask them to join the investigation. It is settled law that the public person do not State vs. Naresh & Ors. Page 15 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi readily agree to join the investigation. Further no doubt is seen in the recovery of alleged TSR. The articles of the complainant were recovered in the said TSR. The photographs of the TSR are Ex.PW10/P-1 to Ex.PW10/P-4. Mobile phone of make Micromax was later released on superdari to PW-12 and the photographs of mobile phone of make Micromax, ATM Card, PAN Card, Driving Licence of PW-12 and cash of Rs.500/- are Ex.PW12/P-1 to Ex.PW-12/P-4. However Rs.500/- is such a small amount and in the absence of any proper relation and identification of the said Rs.500/- currency note it cannot be said that it belongs to the complainant. However no dispute remains regarding identity of mobile phone of make Micromax, ATM Card, PAN Card, Driving Licence of the complainant. The ATM Card of Bank of Baroda, Driving licence and PAN Card were seized vide memo Ex.PW10/D and they are sufficiently proved on record that they were recovered from the TSR. The TSR was in the custody of accused Raj Kumar and hence the prosecution has successfully proved beyond reasonable doubt the said property was received by accused Raj Kumar as stolen property and there is no dispute that this property belongs to the complainant/PW-12. Accordingly accused Raj Kumar is convicted in alternative under Section 411 IPC for having possession of such property with him and that he had retained this property dishonestly, knowing and State vs. Naresh & Ors. Page 16 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi having reason to believe that they are the stolen property.
5. The prosecution has to prove that the accused has intention to commit murder and that such act was 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 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.State vs. Naresh & Ors. Page 17 of 56 FIR No. 192/2016
U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi
(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:
"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 State vs. Naresh & Ors. Page 18 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi 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
(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 State vs. Naresh & Ors. Page 19 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi 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, 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.State vs. Naresh & Ors. Page 20 of 56 FIR No. 192/2016
U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi 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 judgement of the High Court overlooks material parts of the evidence and suffers from perversity. (2014) 5 SCC 369 18 Hence, we set aside the judgement 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
6. 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 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 State vs. Naresh & Ors. Page 21 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi 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 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 State vs. Naresh & Ors. Page 22 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi 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 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.
State vs. Naresh & Ors. Page 23 of 56 FIR No. 192/2016U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi 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
7. All the three accused are charged under Section 307 IPC read with Section 394/34 IPC in that all the accused person in furtherance of their common intention had caused injury on the complainant while committing robbery. The accused Naresh @ Nauni had held the neck of PW-12 the complainant from behind and pressed it to suffocate the PW-12 for such purpose of commission of robbery. Further it is deposed by PW-12 that accused Raj Kumar was driving the said TSR and accused Manish had forcibly taken out his wallet and mobile phone. When the complainant objected to the said robbery then all the three accused started beating PW-12 with stone and PW-12 had sustained serious injury on his head and face. Blood had started State vs. Naresh & Ors. Page 24 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi coming out from his injuries. PW-12 was shifted to Aruna Asaf Ali Hospital. Hence such injuries were claimed to be caused for the purpose of incurring death on PW-12.
8. The PW-15 Sh. Saurabh Pathak, Jr. Forensic Chemical Examiner has deposed that he had received three sealed parcel. He had tallied the seal with the specimen which were found intact. The blood was detected on Ex.1/ stone, Ex.2a/ one shirt and Ex.2b/ pant. The blood was of human origin and the report is Ex.PW15/A. Ex.3 is liquid kept in a vial described as blood sample of the complainant. As per FSL report blood could not be detected in Ex.3. Since the blood could not be detected in Ex.3 which is sample blood exhibits of the complainant therefore it cannot be matched with the articles which are stone, shirt and pant. Further the blood on stone, shirt and pant are of human origin however there was no reaction of the said blood in any of the grouping Mark-A, B and O. Hence it could not be said that there was blood of the complainant/PW-12 on Ex.1, Ex.2a and Ex.2b. Therefore it cannot said that this was the stone with which the complainant/ PW-12 was got hit by the accused person.
9. PW-8 Dr. Valvi Kuldeep Tapsingh who had deposed that around 3:25 AM the complainant PW-12 was brought in State vs. Naresh & Ors. Page 25 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi casualty by HC Jitender with history of physical assault by three unknown person half an hour back at Burfkhana Chowk, Delhi. PW-8 had examined the complainant vide MLC Ex.PW1/A. It is deposed that four wounds / injuries were found i.e. (i) open lacerated wound over right side of face, approximately 5cm X 1cm into skin deep. It was linear in shape vertically place; (ii) open lacerated wound over right side of frontal region (over right eyebrow), approximately 2cm x ½cm into skin deep; (iii) open lacerated wound over right side of forehand mentioned at point-2 of approximately 1cm X 1/2CM into skin deep; and(iv) open lacerated wound over left temporal region, approximately 3xm X ½cm into skin deep. In cross examination of the above witness nothing contrary has come out and the evidence of witness was consistent and reliable. PW-8 was recalled in evidence on 30.10.2019 who had appeared on behalf of Dr. Narendra, Sr. Resident ENT & Others. He had seen Dr. Narendra writing and signing during the course of his official duty. Dr. Narendra had opined the nature of injury as simple in MLC Ex.PW1/A. At point D the opinion of Dr. Narendra regarding such injury was given and point E bears the signature of the Doctor. At point F to F1 in the same MLC bears handwriting of Dr. Saqib, the then Sr. Surgeon whose signatures are at point G. It is further deposed by PW-8 that the injured was referred to Ortho Department and MLC was prepared by State vs. Naresh & Ors. Page 26 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi PW-8 vide Ex.PW8/A i.e. MLC of accused Naresh. Dr. Deepankar and Dr. S. S. Bedi had examined the accused and PW-8 had seen writing and signing the said Doctors during the course of his official duties. The nature of injuries on MLC Ex.PW8/A are simple.
10. Under Section 307 IPC it has to be proved by the prosecution that death of the complainant was attempted or such act was done with intention to cause such bodily injury. Firstly the prosecution has failed to prove the weapon of offence/stone if such stone injury was used on the complainant/PW-12. Even in medical evidence of PW-8 no opinion of Doctor was elicited that the injuries were on such part of body with such depth or blood to show that the intention was of causing death. It is not necessary that the injury could have actually been inflicted or sustained however the manner in which the assault was caused and weapon used must be shown. In fact the weapon of offence was not proved. PW-12 has deposed that all the three assailants started beating him with stones by caught holding his hands. However the stones are not exhibited in the evidence of PW-12. It is not deposed by PW-12 that which of the accused had caught hold of which of his hands and which injury was caused by which of the accused. It is deposed by PW-12 that the person sitting beside him (accused Manish) had deboarded the TSR State vs. Naresh & Ors. Page 27 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi when the TSR had stopped under a flyover. Accused Manish has pulled PW-12 outside and threatened him to give his belongings. When PW-12 had objected then the accused Naresh @ Nauni sitting on the rear seat came out and caught hold of neck of PW-12 from behind and threatened that if he did not give his belongings then PW-12 would be killed by them. In the meanwhile TSR driver deboarded and all the accused started beating PW-12 on head and mouth. The TSR driver is accused No.3 Raj Kumar. Accused No.1 Naresh @ Nauni is the person who came out of the TSR and caught hold of neck of PW-12 from behind and accused No.2 Manish had taken out forcefully wallet of the PW-12/complainant containing money, ATM Card, PAN Card, Driving Licence etc. Accused No.2 Manish had also snatched mobile phone of make Micromax X24. However PW-12 has not exhibited stones used in the alleged hit nor described the nature of such stones in his evidence. The nature of injury was simple. It is settled law that nobody can enter into the mind of the accused and intention of the accused has to be gathered from the weapon used, part of body chosen or the assault, nature of injury caused and similar circumtance. In the present case the weapon of offence and its nature is not proved on record. The nature of injury is simple. Only the part of the body on which injury was caused is right side of the face and forehead where three injuries were caused and one injury State vs. Naresh & Ors. Page 28 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi was caused on left temporal region. In these circumstances of the case it cannot be said that the ingredients of Section 307 IPC is made out in the present case. The intention to cause death cannot be gathered from the circumstances of the case. It is held that all the accused are acquitted under Section 307 IPC keeping in view the fact that it is not deposed by PW-12 that out of four injuries which of the injury was caused by which of the accused. The prosecution has failed to prove that any of the single injury was caused with the intention and in the nature sufficient to cause death or any such attempt.
11. Now it has to be seen whether the prosecution has successfully proved the ingredients of Section 392/394/397/34 IPC.
12. To prove ingredients of Section 392/397/34 IPC, the prosecution has to prove necessary ingredients. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case State vs. Naresh & Ors. Page 29 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to State vs. Naresh & Ors. Page 30 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, State vs. Naresh & Ors. Page 31 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons State vs. Naresh & Ors. Page 32 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons State vs. Naresh & Ors. Page 33 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC
- 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, State vs. Naresh & Ors. Page 34 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person:
vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is State vs. Naresh & Ors. Page 35 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section
397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person State vs. Naresh & Ors. Page 36 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision.
But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253]."
State vs. Naresh & Ors. Page 37 of 56 FIR No. 192/2016U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi
8. The first ingredient the prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v. State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
State vs. Naresh & Ors. Page 38 of 56 FIR No. 192/2016U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or State vs. Naresh & Ors. Page 39 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. State vs. Naresh & Ors. Page 40 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for. Xxxxxxx State vs. Naresh & Ors. Page 41 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi
13. It is settled law that under Section 392, Section 394 and Section 397 IPC only the offender/ accused who has committed robbery and / or has voluntarily caused hurt or attempt to commit such robbery and who uses any deadly weapon to cause grievous hurt on any person at the time of committing such robbery or dacoity can only be punished. For the aforesaid purpose the accused cannot be convicted on the basis of constructive liability. Only the offender who uses deadly weapon can be punished. Hence the prosecution has to prove the individual acts of each of the accused on record to bring home the offence. In the present case the prosecution has failed to prove on record that which of the injury are caused by any of the accused and what weapon of offence is used by each of the accused. It is not the case of the prosecution that the accused had ran away with the weapon of offence. If the weapon of offence was lying at the spot or available at the spot then they must have been produced on record in evidence of PW-12 which is not done by the prosecution. In fact the police person had reached at the spot during the commission of offence and they reached there after hearing the sound "Pakro-Pakro". Hence the police person had reached just at the time when the offence was committed. The weapon of offence was available at the spot. However it was not produced in the evidence of injured/PW-12 without any reason. The injuries has to be State vs. Naresh & Ors. Page 42 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi proved in reference to the weapon of offence. Hence there is no constructive liability between the accused in reference to Section 392/394/397 IPC and therefore each of the accused has to be liable separately for their respective acts. Separate act of each of the accused while committing injury on the victim has to be proved. Such separate acts are totally absent in the evidence of the prosecution and even in the deposition of the complainant/PW-12. Hence it cannot be said that which of the accused has voluntarily caused hurt on the victim/ complainant in the process of such robbery and hence it is held that doubt has arisen in the case of the prosecution. Benefit of such doubt is granted to the accused. The prosecution has failed to prove the necessary ingredients of Section 394/397/34 IPC against each of the accused. Hence all the accused are held acquitted of offence committed under Section 394/397/34 IPC.
14. Under Section 392 IPC constructive liability is not applicable between all the accused. However as already discussed in evidence above the prosecution has specifically failed to prove on record acts of each of the accused. PW-12 has deposed that he was traveling in the TSR driven by accused No.3 Raj Kumar and after arriving at some distance at point A in the site plan Ex.PW16/B the TSR was stopped by accused No.3 Raj Kumar. The accused Manish who was sitting with the State vs. Naresh & Ors. Page 43 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi driver came to the rear seat in moving TSR and this accused who came to the rear in moving TSR is accused No.2 Manish. The other accused who was sitting beside PW-12 de-boarded from TSR and caught hold of neck from behind of PW-12 who is accused Naresh @ Nauni. The driver/accused No.3 Raj Kumar of the TSR had started beating on mouth and head with stones with other co-accused when PW-12 had objected to taking forcibly of his wallet and mobile phone of make Micromax. Accused Naresh @ Nauni had threatened PW-12 to hand him over his belongings failing which PW-12 would be killed. Accused No.2 Manish had forcefully taken out wallet of PW-12 from his pocket which also contained documents. All the three accused started beating the complainant/PW-12 by catching hold of his hand with stones. Blood started coming out from the injuries of PW-12 and it is proved in evidence of PW-8 that the nature of injuries were simple all of which were on the face and head of the victim and four in total.
15. Learned Counsel for the accused has submitted that public witness was not joined by the police despite the fact that the accused Naresh was caught at the spot by public person. It is noted that now it is settled law that public person do not readily join the investigation and non-joining of public witness does not create doubt in the case of the prosecution unless other serious State vs. Naresh & Ors. Page 44 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi infirmity is shown in the case of the prosecution. In fact the accused and the victim are not known to each other nor police had any kind of bias towards the accused. Non-joining of public witness in such a case when the accused was already apprehended does not create doubt in the case of the prosecution. It is not the case of prior raid where non-joining of public witness may create doubt when the police had sufficient time to join public witness.
16. Learned Counsel for the accused has disputed that the offence has not happened at point A in site plan Ex.PW16/B. It is submitted that he has visited several times on the said road and House No.3807 reported in DD No.3 PP Ex.PW3/A does not lie anywhere near point A in the site plan Ex.PW16/B. However the accused has not produced any site plan to contradict the above fact nor the fact was contradicted to the IO/ASI Yogesh Kumar in his deposition. The prosecution has proved occurring of offence as per site plan ExPW16/B. Hence the accused has failed to prove what he has alleged. Ex.PW3/A is not put to PW-16 by the accused during cross examination to challenge the above fact and only during first time this is raised during final arguments. Under any circumstance Ex.PW3/A was not made by the complainant and it is not relevant for the purpose of date and time and for this also there are other State vs. Naresh & Ors. Page 45 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi document which can be looked into including evidence of witnesses. In the deposition of PW-6 Ct. Satish Chand and PW- 9 Ct. Umed Singh it has come on record that immediately after the incident they had reached at the spot. However there is no witness to the site plan Ex.PW16/B which was prepared by ASI Yogesh Kumar/ PW-16. Learned Counsel for the accused has submitted that the accused person have residence and they are not vagabond. It is noted while recording statement under Section 313 Cr. P. C. accused No.3 Raj Kumar and accused No.2 Manish have stated themselves as resident of pavement only and hence they do not have any fixed place of abode. Accused No.1 Naresh also does not have any fixed place of residence at Delhi. No evidence to the contrary is proved by the accused person and hence the accused are found vagabond having no fixed place of residence at Delhi.
17. It is submitted on behalf of Learned Counsel for the accused that to solve the case the accused person are falsely implicated. The above submission does not stand keeping in view the facts of the present case as the case was registered after the accused was caught at the spot at point A in site plan Ex.PW16/B and had the accused been falsely implicated to solve a case then the case must have been registered prior to the occurrence of offence. This is not the fact in the present case.
State vs. Naresh & Ors. Page 46 of 56 FIR No. 192/2016U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi Hence plea of false implication to solve a case is rejected.
18. Learned Counsel for the accused has submitted that there is doubt in PW-12 coming from Dabwali Haryana. It is deposed by PW-12 in cross examination dated 19.09.2019 that he used to take bus from Peeragarhi and on the day of incident he had slept in the bus due to which he could not get down at Peeragarhi and reached in the bus at Kashmere Gate. At Kashmere Gate he reached at about 2:30 AM in the morning and after coming out of ISBT he was searching for a vehicle for travelling to Nihal Vihar. At that time a TSR came and stopped near him in which one passanger was sitting with the driver and one was sitting on the backseat. It is noted that the place Nihal Vihar is near Peeragarhi and therefore the deposition of PW-12 is consistent that he was searching for vehicle from Kashmere Gate towards Nihal Vihar. There is no impeachment to the fact that PW-12 was not going to Nihal Vihar. In fact his address is disclosed in the evidence at Nihal Vihar, Rohini and in natural course at 2:30 AM he is expected to go to his residence only and at no other place.
19. When the accused No.3 Raj Kumar had stopped the TSR at point A in site plan Ex.PW16/B then accused No.1 Naresh @ Nauni held neck of PW-12 from behind and pressed it to State vs. Naresh & Ors. Page 47 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi suffocate PW-12. Accused No.2 Manish had forcefully taken out the wallet and mobile phone of PW-12. At that time when PW-12 had objected to the said robbery then all the three accused started beating PW-12 with the stones lying there. Accused No.1 Naresh had extended the threat that if PW-12 did not give his belongings then they would kill PW-12. Accused No.1 Naresh is correctly identified by PW-12 before the Court who had caught hold of neck of PW-12 from behind. Accused No.1 Naresh was caught at the spot with the help of public person and accused No.2 & 3 had ran away from the spot. PW- 11 the learned MM had recorded that accused No.2 Manish and accused No.3 Raj Kumar had refused to particpate in the TIP proceedings despite warning that on their such refusal adverse inference would be drawn against them. Accused No.2 Manish had refused TIP on the ground that the complainant had seen them namely accused Manish and accused Raj Kumar when they were coming together in the TSR. Now the onus has shifted on the accused to show that the complainant PW-12 had seen the accused person when they were coming in TSR. The accused person has not disclosed any place with date, time and month where they were seen by the complainant. At least a probability should have been shown of such seeing of accused No.2 and 3 by the complainant. In absence of specific averments the prosecution cannot contravene the apprehension State vs. Naresh & Ors. Page 48 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi raised by the accused person. The truthfulness of the apprehension has to be probablized by the accused person only. Even by oral evidence the accused person has failed to probalize that they were seen by the complainant which could justify their refusal of TIP. Hence the accused person has failed to discharge the onus of proof shifted on them regarding such refusal of TIP by them and therefore adverse inference is drawn against both the accused Manish and Raj Kumar that had they participated in the TIP then they would have been correctly identified by the complainant/PW-12.
20. Further the recovery of PAN Card, wallet and ATM Card of Bank of Baroda in the TSR possessed by accused Raj Kumar corroborates the version of PW-12 that accused Raj Kumar was driving the TSR on 25.05.2016 around 2:45 AM in which all the accused were sitting and they took PW-12 as passenger.
21. The PW-12 has deposed that all the accused had beaten him when the accused were objected by PW-12 in handing over his belongings. The injuries are four in number which has came in evidence of PW-8 discussed above. It is proved on record that the injuries were fresh. The number of injuries are more than the number of accused and each of the accused could have caused the injuries as deposed by PW-8. It is held in AIR 1996 State vs. Naresh & Ors. Page 49 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi Gujrat 2021 that when the medical evidence is uncertain as to which of the blows was the fatal blow only then minimum intention should be attributed to the acts of the accused and conviction can be done under Section 324 IPC. Where during the attack one of the accused is given minor blow on non-vital part then he could be prosecuted only under Section 324 IPC and it was laid in AIR 1992 SC 1629. It was held in 1979 All Cri R 498 that where the only doubt arising from the case of the prosecution was as to the particular weapon used by the particular accused person then accused cannot be acquitted all together but will be held guilty of lesser offence. It was held in (1984) 1 Crimes 728 that where on evidence it was held that accused No.2 & 3 had shared common intention to cause grievous hurt to the victim then they were held guilty under Section 324 IPC. It was held in 2015 (2) KANT LJ 101 (DB) that where evidence on record showing that accused along with other accused persons voluntarily caused minor injuries on non vital part of the body of the deceased though without common intention then he is liable to be convicted under Section 324 IPC. The above citations are taken from the book titled AIR Manual Civil and Criminal, 6th Edition, Volume 38 written by Manohar and Chitaley published by AIR Pvt. Ltd. Nagpur.
22. It has sufficiently come on record in the evidence of PW-8 State vs. Naresh & Ors. Page 50 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi that PW-12 had suffered four injuries during the said incident. All the accused had no reason to attack PW-12 except to rob him and the stolen articles are recovered and proved on record recovered from the possession of accused No.3 Raj Kumar. Hence for the purpose of committing theft injuries were caused upon PW-12 by the accused person. Even when the weapon of offence could not be recovered and it could not be ascertained that which of the accused had hit PW-12 at which place of the head or face even then all the accused had shared common intention to rob the victim. Even when they had not shared common intention then also in view of citation referred above the accused are liable to be convicted under Section 324 IPC for having caused hurt on PW-12 by dangerous weapon or means. PW-12 had consistently deposed that they got hurt by stones by the accused person and under a given circumstance a stone can be a dangerous weapon or means. Hence hurt was caused upon PW-12 by all the accused person at point A referred in site plan Ex.PW16/B and thereby the prosecution has satisfied the ingredient of Section 392 IPC against all the accused that while committing robbery they had voluntarily caused hurt on PW-12 for the purpose of committing theft and while committing theft.
23. Such attack on PW-12 was done by accused person only for the purpose of carrying away the property obtained by theft State vs. Naresh & Ors. Page 51 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi and evidence of PW-12 the complainant and remaining prosecution witness remained consistent, unrebutted and reliable in this respect. There was no reason for the accused person to be together at 2:30 AM at night time in an auto rickshaw to carry a passenger from ISBT and then to attack upon him. In fact all the accused are vagabond. The TSR was driven by accused No.3 Raj Kumar and accused No.2 Manish and accused No.1 Naresh had no reason to be present in TSR as they had nowhere to go. They continued to stay in TSR only for the purpose of robbing the complainant at point A in Ex.PW16/B.
24. All the accused were present together in the auto rickshaw and came together at ISBT to carry PW-12 as a passenger to rob him at point A in Ex.PW16/B the site plan which shows that all the accused had a community of purpose and common design or prearranged plan to rob PW-12. This plan was formed immediately when they came together to carry PW-12 as passenger in view of the fact that accused Naresh and accused Manish had nowhere to go in auto rickshaw and not at all to go at a place called Nihal Vihar near Peeragarhi. All the accused are vagabonds of nearby area and they knew each other beforehand. They were three in number and had believed that they could easily overpower the victim PW-12 and therefore State vs. Naresh & Ors. Page 52 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi carried PW-12 with them for such purpose to be attacked under the bridge. All the accused actively participated in the commission of the offence. The relevant citation titled Ram Naresh vs. State of UP [Criminal Appeal No. 3577 of 2023] at relevant para are reproduced hereasunder:
8. A reading of Section 34 of the IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone.
Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34 IPC would come into play. To attract Section 34 IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
12. Assistance has been taken of paragraph 26 of the decision of this Court in Krishnamurthy alias Gunodu and Ors. vs. State of Karnataka1, which is reproduced herein below.
"26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation.
For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or State vs. Naresh & Ors. Page 53 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi acts of the coassailants/ perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
13. A plain reading of the above paragraph reveals that for applying Section 34 IPC there should be a common intention of all the coaccused persons which means community of purpose and common design. Common intention does not mean that the co- accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence.
14. The aforesaid decision instead of helping the appellant rather supports the prosecution that the appellant was rightly convicted with the aid of Section 34 IPC for the offence of killing the deceased as they all had come armed, assaulted him together and thereafter left the place of occurrence together.
15. The decision in Jasdeep Singh alias Jassu vs. State of Punjab2 to the effect that a mere common intention per se may not attract Section 34 IPC unless the present accused has done some act in furtherance thereof is of no assistance to the appellant as it is writ large on record as per the evidence that the appellant not only had common intention to kill the deceased Ram Kishore but also actively participated in assaulting and giving blows to the deceased Ram Kishore together with the other accused persons.
State vs. Naresh & Ors. Page 54 of 56 FIR No. 192/2016U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi
25. It is argued by learned Counsel for the accused that PW-12 had deposed that it was dense dark under the flyover. Even believing that it was dense dark under the flyover then also it cannot be said that it was dark beginning from Kashmere Gate till they reach under the flyover and therefore there was ample time and light available during such travel so that PW-12 could look and identify the accused person . The evidence of PW-12 is unimpeached and reliable in material respect. In view of the above al the accused are held guilty under Section 392 IPC and convicted accordingly.
26. In view of the discussion above, all the accused are held guilty under Section 392/34 IPC and the alternative conviction of accused No.3 Raj Kumar under Section 411 IPC gets merged with his conviction under Section 392/34 IPC. Since the accused No.3 Raj Kumar is convicted under Section 392/34 IPC which includes in itself the offence of theft and therefore the conviction under Section 411 IPC goes back to conviction under Section 379 IPC and therefore merges with conviction under Section 392/34 IPC. Hence, separate conviction under Section 411 IPC in the alternative does not stand against accused No.3 Raj Kumar. Hence, all the accused are held guilty under Section 392/34 IPC.
State vs. Naresh & Ors. Page 55 of 56 FIR No. 192/2016U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi Put up for arguments on sentence of accused on 12.08.2024.
JOGINDER Digitally JOGINDER signed by Announced in the open court PRAKASH PRAKASH NAHAR Date: 2024.08.05 on dated 05.08.24 NAHAR 15:25:32 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi05.08.24 State vs. Naresh & Ors. Page 56 of 56 FIR No. 192/2016 U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi