Rajinder vs State Of Delhi
2009 Latest Caselaw 2959 Del

*      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

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

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.

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

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

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

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

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