Mohd. Sagir vs The State
2009 Latest Caselaw 4342 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                             Date of decision: 27.10.2009


+                           CRL. A. No.14 of 1997


MOHD. SAGIR                                             ...APPELLANT

                            Through:   Sumeet Verma, Advocate.


                                   Versus


THE STATE                                            ...RESPONDENT

                            Through:   Mr. Sunil Sharma, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?               No

2.        To be referred to Reporter or not?                No

3.        Whether the judgment should be                    No
          reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. The appellant Mohd.Sagir along with co-accused

Kamruddin (who was declared a PO during trial) were

charged with the offence of causing death of Mustkin and

on being found guilty, the appellant Mohd.Sagir was

convicted under Section 302/34 of IPC in terms of the

impugned Judgment dated 29.10.1996 and sentenced to

undergo life imprisonment and to pay fine of Rs 2,000/-

and in default of payment of fine to further undergo SI for

three months in terms of the order on sentence dated

30.10.1996. This has resulted in the present appeal

being preferred before us.

2. The case of the prosecution is that on the fateful

intervening night of 07/08.07.1992 at about 4 AM the

appellant accompanied by Kamruddin went to the bullock

cart (baghi) where the deceased had been sleeping. The

appellant is alleged to have held his feet while

Kamruddin hit him on the head with a heavy object which

caused his death. On information being received, ACP

Shiv Kumar/PW12 reached the place of occurrence at

about 4.45 A.M. and found the dead body of the

deceased on the bullock cart (baghi) with blood stains on

the right temporal region.

3. The statement of Shahbuddin/PW3 was recorded at the

site which is ExPw12/A and the same was sent to police

station for registration of the case. Const. Balledin

handed over the rukka to ASI M.Ralangi/PW9 who

recorded the FIR under Section 302/34 of IPC (ExPW5/D).

The bullock cart (buggi) and the blood stained bed sheet

were taken into possession by SI Jai Parkash/PW2.

Photographs were taken and the site plan was drawn. On

completion of investigation, charge sheet was filed. The

appellant pleaded innocence and claimed trial.

4. The case of the prosecution is based on the testimony of

two eye-witnesses Shahbuddin/PW3 and

Mohd.Kamal/PW4.

5. Shahbuddin/PW3 deposed that he knew both the accused

persons as well as the deceased. He deposed that on

intervening night of 07/08.07.1992 he along with PW4

and the deceased was sleeping on the bullock cart(buggi)

near the tube well when he suddenly heard cry of the

deceased at about 4 A.M. PW3 and PW4 woke up and

saw that the appellant had caught hold of the feet of the

deceased while Kamruddin was giving him beating with a

heavy object like a rod on the right side of the temporal

region. The incident is stated to have been seen by him

in the light of the street as well at the spot. The

appellant and Kamruddin are thereafter stated to have

run away with the weapon of offence and despite effort

could not be apprehended. The deceased was thereafter

shifted to a cot and before he could be taken to the

hospital, he died.

6. The testimony of PW4 is also identical. He has deposed

that about a year before the fateful incident, there was

some quarrel between the deceased and Kamruddin.

7. The post mortem report in respect of the deceased has

been proved by Dr.L.K.Barua/PW5 who found a lacerated

wound on the right side of the neck as well as a linear

wound on the right ear and one linear bruise on the right

side of the forehead with a fracture of right temporal

bone. The doctor opined that the injuries were ante

mortem in nature and were caused by the application of

blunt force. The cause of death was due to coma as a

result of head injuries which, in the normal course of

nature, were sufficient to cause death.

8. It is also relevant to note at this stage that Mukesh

Kumar Jain was examined as CW1. He deposed that he

was summoned to the spot where he took rough notes

and measurements on the pointing out of

Shahbuddin/PW3, on the basis of which he prepared the

scaled site plan ExPW14/A. The witness has stated that

Shahbuddin/PW3 had told him that a wodden paya was

used by accused for killing the deceased.

9. We have heard learned counsel for the parties.

10. Learned counsel for the appellant sought to plead initially

that the evidence of PW3 and PW4 is doubtful because as

per prosecution theory the alleged weapon was a rod

whereas CW1 SI Mukesh Kumar Jain has stated that PW3

Shahbuddin who assisted him in preparing the site plan,

told him that a wooden "paya" was used by the accused

Kamruddin. He also submitted that even the weapon of

offence has not been recovered. In our view, the

infirmity pointed out by the learned counsel for the

appellant is inconsequential. There is no law that in

order to succeed in a court, investigating agency must

recover the weapon of offence. On a careful perusal of

the testimony, we find that the two witnesses have

withstood the cross examination and the role assigned to

the appellant and Kamruddin cannot really be disputed.

The weapon of offence, however, was not found and in

respect of the same there is a contradiction between the

testimony of PW3 who claimed that it was something like

a rod while the CW1 has stated that the same PW3 had

indicated that a wooden paya was used for killing the

deceased.

11. The testimony of PW3, thus, does show that a hard object

was used to inflict injuries on the deceased and since

PW3 has deposed that the object was "like rod" and

thereafter it emerged that it was a wooden paya, that

appears to be the weapon of offence. As to whether the

wooden paya was carried by Kamruddin with him or it

was an object lying at the site has not emerged from the

testimony of the witnesses.

12. Learned counsel for the appellant has essentially tried to

canvass the proposition that assuming the case of the

prosecution to be correct, the present case was not one

where the appellant should have been convicted under

Section 302 of IPC with the aid of Section 34 of IPC. In

this behalf, learned counsel has pointed out that the

appellant as well as Kamruddin were not armed with any

sharp weapon like a knife or any other weapon like a

katta or a pistol and it was an object like a wooden paya

which had been used to attack the deceased. The role

of the appellant was to hold feet of the deceased while

Kamruddin inflicted injuries to him. Learned counsel for

the appellant has thus contended that at best the

common intention, which could be inferred, could be to

cause grievous injury to the deceased and thus an

offence under Section 325 of IPC is made out against the

appellant. The said Section 325 of the IPC reads as

under:

"Section 325. Punishment for voluntarily causing grievous hurt

Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

13. Learned counsel for the appellant has taken aid of

pronouncements of the Supreme Court in respect of such

common intention. In Ramashish Yadav and Ors.v.State

of Bihar; 2000 SCC (Crl.)9 it was observed that the

principle of joint liability in doing of a criminal act under

Section 34 of IPC is essentially based in the existence of

common intention animating the accused leading to the

doing of a criminal act in furtherance of such intention.

The distinct feature was stated to be the element of

participation in action and a pre-arranged plan which is

proved either from conduct or from circumstances or

from any incriminating facts. The Supreme Court went

on to observe that :

"It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert of meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment

but there must be pre-arrangement or pre-mediated concert."

14. In the given facts of the case, the accused persons came

and caught hold of the deceased whereafter the other

accused came with a gandasa and gave blows with it and

the same was held not to form a common intention of all

the four accused to cause death of the deceased.

15. We find substance in the plea of the learned counsel for

the appellant though we have no doubt that there was a

common intention formed on the part of the appellant

and Kamruddin when they visited the deceased at 4 A.M.

in the morning and the appellant caught hold of the feet

of the deceased while Kamruddin hit him with a hard

object like a wooden paya of a cot. The question

however remains what was this common intention?

16. In our considered view, from the testimony of the

witnesses, we cannot come to the conclusion that the

appellant and Kamruddin shared a common intention to

cause death of the deceased.

17. The role assigned to the appellant is that he held the feet

of the deceased while his co-accused Kamruddin hit the

deceased with a rod or a "paya". In the absence of user

of a dangerous weapon like knife, pistol or a katta etc.,

which would normally be used in such a situation where

there is an intention to cause death of a person, at best

what can be inferred from the evidence is that the

appellant shared a common intention with his co-accused

Kamruddin to cause grievous injury to the deceased.

18. In view of the aforesaid finding, the appellant is liable to

be convicted under Section 325 r/w Section 34 of IPC and

we accordingly modify the sentence of the appellant and

convert the same from the one under Section 302/34 of

IPC to one under Section 325/34 of IPC and sentence the

appellant to undergo RI for 6 years. We, however,

sustain the order on fine.

19. The appeal is thus allowed to the aforesaid extent.

20. We find from the nominal roll that the appellant has

already undergone the sentence of six and a half years

and thus has served the sentence awarded to the

appellant in default of payment of fine which was to pay

a fine of Rs.2,000 in default to undergo SI for three

months.

21. Bail-cum-surety bonds stand discharged.

22. The appellant be released forthwith if not wanted in any

other case.

SANJAY KISHAN KAUL, J.

October 27, 2009                                   AJIT BHARIHOKE, J.
dm