* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: July 31, 2009
+ CRIMINAL APPEAL NO.173/1997
RAJINDER ..... Appellant
Through: Mr.Navin Chawla and Mr.Prakash
Kumar, Advocates.
versus
STATE OF DELHI .....Respondent
Through: Mr.Sunil Sharma, Advocate.
WITH
+ CRIMINAL APPEAL NO.174/1997
MOOL CHAND ..... Appellant
Through: Mr. Navin Chawla, Amicus Curiae
versus
THE STATE (N.C.T. OF DELHI) ..... Respondent
Through: Mr.Sunil Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to see the
judgment? No
2. To be referred to the Reporter or not ? No
3. Whether the judgment should be reported
in Digest ? No
SANJAY KISHAN KAUL, J.(ORAL)
1. The appellants, Rajinder and Mool Chand, have preferred the appeals against the judgment of conviction rendered by the learned Crl.A.173/97 & Crl.A.174/97 Page 1 of 8 Additional Sessions Judge in Sessions Case No.25/1993 arising out of FIR No.42/1992 holding the appellants guilty of committing murder of the deceased Mohan; the offence punishable under Section 302 IPC read with 34 IPC and awarded the sentence of imprisonment for life.
2. Briefly stated, the case of the prosecution is that on the night intervening 19th and 20th January 1992 at about 12.30 AM near House No.24/473, Trilok Puri, one Kallu was quarrelling with PW-3 Kailashi, the appellants and their co-accused Chander Pal (whose case was referred to Juvenile Court) were taking side of Kallu and quarrelling with PW-3 Kailashi. The deceased Mohan intervened on behalf of PW-3 Kailashi. On this, the appellants and their co-accused Chander Pal started quarrelling with Mohan. It is alleged that the appellants caught hold of the deceased Mohan and exhorted Chander Pal to kill Mohan and their co-accused Chander Pal stabbed him on the left arm near the shoulder with a pair of scissor which was in his hand. The deceased Mohan was taken to the hospital by his elder brother Hari Chand where he died at about 8.00 AM on 20th January 1992.
3. After completion of necessary formalities of the investigation, the appellants along with their co-accused were sent for trial for having committed offence punishable under Section 302/34 IPC. Since the co-accused Chander Pal was a juvenile, his case was separated and referred to the Juvenile Court. The appellants were Crl.A.173/97 & Crl.A.174/97 Page 2 of 8 charged under Section 302/34 IPC. Both of them pleaded not guilty and claimed trial.
4. The learned Additional Sessions Judge on consideration of the evidence produced by the prosecution and the statements made by the appellants under Section 313 Cr.P.C. held both the appellants guilty of offence punishable under Section 302 IPC with the aid of Section 34 IPC.
5. The learned counsel for the appellants has submitted that the learned trial judge has grossly erred in appreciation of evidence. According to him, the learned Trial Court has given undue weightage to the testimony of PW5 Kali Charan that the appellants exhorted their co- accused Chander Pal to kill the deceased by uttering the words "mar de sale ko" which version has not been corroborated by other four eye witnesses, namely, PW1 Brahm Prakash, PW2 Hari Krishan brother of the deceased, PW3 Kailashi and PW4 Smt. Parmeshwari mother of the deceased. It is thus contended that the learned trial judge ought to have disbelieved at least that part of the version of PW5, Kali Charan. On the other hand, learned prosecutor has submitted that the Trial Court has rightly believed the testimony of PW5 Kali Charan regarding the exhortation given by the appellants because it finds corroboration from his complaint statement Ex.PW5/A which was recorded by the Police.
Crl.A.173/97 & Crl.A.174/97 Page 3 of 8
6. On consideration of the evidence, we notice that the prosecution has examined only five eye witnesses, including Kali Charan. PW1 Brahm Prakash and PW2 Hari Krishan brother of the deceased have not supported the case of the prosecution and they were declared hostile. Even PW3 Kailashi and PW4 Smt. Parmeshwari Devi mother of the deceased have not stated anything about the exhortation given by the appellants to co-accused Chander Pal. In this view of the matter, we consider it unsafe to rely upon the uncorroborated testimony of PW5 Kali Charan regarding the exhortation given by the appellants to their co-accused Chander Pal to kill the deceased. Further, it would be seen from the testimony of PW5 Kali Charan that he has stated that after the occurrence, he went to the police post on a bicycle and after the police had recorded his name and address, came back to the spot of occurrence. In the cross-examination, he has stated that his statement was recorded by the police at the Police Station as well as at the spot. From the aforesaid version of PW5 Kali Charan, it transpires that his complaint was not recorded by the Police at the very first opportunity despite the fact that he had gone to the police post. This circumstance casts a doubt on the fairness of the investigation and a possibility cannot be ruled out that recording of the first information about the occurrence was deliberately deferred and the FIR is the result of deliberation and after thought. Thus, under the circumstances, we are not inclined to believe uncorroborated Crl.A.173/97 & Crl.A.174/97 Page 4 of 8 testimony of PW5 Kali Charan regarding the exhortation given by the appellants.
7. The learned counsel for the appellants has submitted that once the version of PW5 Kali Charan, that the appellants after catching hold of the deceased had exhorted their co-accused Chander Pal to kill him, is disbelieved, the only overt act which can be attributed to them was that they caught hold of the deceased. Therefore, in absence of any evidence of prior concert between the parties, they ought not to have been convicted under Section 302 read with 34 IPC. In support of this contention, he has relied upon the judgment of Ajay Sharma v. State of Rajasthan, AIR 1998 SC 2798 and Matadin etc. v. State of Maharashtra, AIR 1999 SC 138.
8. It is well-established that before a person can be held liable for the acts done by another under the provision of Section 34 IPC, it must be established that; (a) there was common intention in the sense of a pre-arranged plan between the two and; (b) the person sought to be made liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, a person cannot be held vicariously liable for the offence committed by another. In the instant case, there is no evidence on record to establish previous enmity or motive to kill the accused on the part of the appellants or their co-accused Chander Pal. It is apparent from the evidence that actually the quarrel was going on between PW3 Crl.A.173/97 & Crl.A.174/97 Page 5 of 8 Kailashi and one Kallu in which the appellants and Chander Pal also intervened in favour of Kallu and the deceased on hearing of the noise, came out and intervened to separate them, when he was held by the appellants and their co-accused Chander Pal suddenly stabbed him with the scissors. From the above, it is apparent that the incident took place at the spur of the moment without any prior concert between the appellants and Chander Pal. Therefore, it cannot be said that the appellants and Chander Pal shared common intention to kill the deceased. Further, it is to be noted that as per the case of the prosecution, Chander Pal who actually stabbed the deceased, is a tailor by profession and he was carrying scissors with which he stabbed the deceased. The scissors, obviously, was the tool of trade of Chander Pal and the appellants could not have imagined that Chander Pal would use the same for stabbing the deceased. Therefore, given the role ascribed to the appellants, i.e., of holding the deceased and no other overt act having been committed by them leads us to the conclusion that no commonality of intention between the appellants and the co- accused Chander Pal can be inferred in this case.
9. Learned Prosecutor has submitted that even if the testimony of PW5 Kali Charan regarding exhortation by the appellants is disbelieved, then also it is established on record from the testimony of the witnesses that the appellants during the quarrel caught hold of the deceased and their co-accused Chander Pal stabbed him with the Crl.A.173/97 & Crl.A.174/97 Page 6 of 8 scissors. From that evidence, he has submitted that it can be safely inferred that the appellants actually shared common intention with their co-accused Chander Pal to kill the deceased Mohan. In support of this contention, he has relied upon the judgment in the case of Major Singh v. State of Punjab, AIR 2003 SC 342.
10. We do not find any merit in the submission made by the learned counsel for the State. The judgment cited by him is based upon its peculiar facts and, in our considered view, is not applicable to the facts of this case. Facts in that case before the Supreme Court were that it was established from the prosecution evidence that when the assailants had picked up weapons and came to assault the victims, the appellant in that case held the hand of one of the victims so as to help the assailant assault the victims and because of the said overt act common intention on his part was inferred by the Supreme Court. In the case at hand, there is no evidence on the record to suggest that the appellants were aware that their co-accused was carrying the scissor and he had any intention to use the same. Therefore, this is not a case in which common intention on the part of the appellants to kill the deceased can be inferred.
11. In view of our discussion above, we are of the view that the learned Trial Court has erred in concluding that the appellants shared common intention with the co-accused Chander Pal to commit murder Crl.A.173/97 & Crl.A.174/97 Page 7 of 8 of the deceased, therefore, conviction of the appellants for the offence under Section 302 IPC with the aid of Section 34 IPC is not justified.
12. Accordingly, we allow the appeals and set aside the impugned judgment and the order on sentence. Appellants are acquitted.
13. Appellants are on bail, therefore, their bail-cum-surety bonds stand cancelled and discharged.
SANJAY KISHAN KAUL, J.
JULY 31, 2009 AJIT BHARIHOKE, J.
Ks/pst
Crl.A.173/97 & Crl.A.174/97 Page 8 of 8