Om Singh @ Omi vs The State, Delhi Admn.
2009 Latest Caselaw 3729 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on : September 07, 2009
                                 Judgment delivered on : September 14, 2009


+      CRIMINAL APPEAL NO.249/1996

       OM SINGH @ OMI                                           ..... Appellant
                                        Through:   Mr. Viraj R. Datar, Advocate
                      Versus

       THE STATE, DELHI ADMN.                                 ..... Respondent
                         Through:                  Mr. Pawan Sharma, Advocate


                                           WITH


       CRIMINAL APPEAL NO.54/1997

       LAKHAN @ BIJENDER @ MINTU           ..... Appellant
                        Through: Mr. Bhupesh Narula, Advocate

                      Versus

       STATE                                                 ..... Respondent
                                        Through:   Mr. Pawan Sharma, Advocate


                                            AND


       CRIMINAL APPEAL NO.57/1997

       MAHIPAL                                               ..... Appellant
                                        Through:   Mr. Bhupesh Narula, Advocate

                      Versus

       STATE(DELHI ADMN.)                                    ..... Respondent
                        Through:                   Mr. Pawan Sharma, Advocate


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



Crl. Appeal Nos.249/96, 54/97 & 57/97                                     Page 1 of 10
 1.     Whether Reporters of local papers may be
       allowed to see the judgment?                      Yes

2.     To be referred to the Reporter or not ?           Yes

3.     Whether the judgment should be
       reported in Digest ?                              Yes


AJIT BHARIHOKE, J.

1. Above three appeals have been separately filed by the appellants

Om Singh @ Omi, Lakhan @ Bijender @ Mintu and Mahipal against

common judgment dated 11.09.96 of the learned Additional Sessions

Judge and consequent order on sentence of the same date.

2. Briefly stated, case of the prosecution as revealed in the FIR is

that on 10.11.93 at about 8.00 PM on the pavement of Ganda Nala in

front of Gali No.4, Jagjivan Nagar, appellants Om Singh @ Omi, Mahipal

and their co-accused Vijay Pardeshi were seen giving kicks and fist

blows to Mahender Singh (deceased). Meanwhile, appellant Lakhan @

Bijender @ Mintu arrived at the spot and struck with his head against

the chest of Mahender Singh who fell down due to the impact. Co-

accused Vijay Pardeshi (since deceased), thereafter, put his foot and

said that he had remained in jail for three months because of him (the

deceased) therefore he would kill him. Some persons from the public

tried to rescue the deceased but Vijay Pardeshi again threw him on the

ground and as a result Mahender Singh sustained injuries and blood

started dripping from his lips and the fore-head. Mahender Singh was

removed to the GTB Hospital and he was found to have suffered as

many as 14 injuries because of the beating i.e. kicks and fist blows

given by the appellants and their co-accused Vijay Pardeshi. Mahender

Singh, unfortunately, expired on the same night at 11.30 PM.

3. Initially, a case under Section 307/34 IPC was registered on the

basis of the complaint statement given by PW Ashok Kumar to SI

Rajesh Kumar. On the receipt of information of death of Mahender

Singh, the case was converted into a case of murder punishable under

Section 302/34 IPC. On completion of the formalities of investigation,

appellants as well as Vijay Pardeshi were sent for trial. They were

charged for the offence punishable under Section 302 IPC read with

Section 34 IPC. All of them pleaded not guilty and claimed the trial.

4. Learned Additional Sessions Judge on consideration of the

evidence led by the prosecution, various exhibits and the statements of

the appellants and Vijay Pardeshi recorded under Section 313 Cr.P.C.,

came to the conclusion that the appellants and Vijay Pardeshi had

indeed beaten the deceased Mahender Singh by kicking him and giving

him fist blows and on consideration of the evidence on record, he drew

an inference that the appellants as well as their co-accused Vijay

Pardeshi (since expired) shared common intention to cause death of

Mahender Singh. Accordingly, he convicted all of them for murder

punishable under Section 302 IPC with the aid of Section 34 IPC. The

learned Additional Sessions Judge as a consequence of conviction,

sentenced respective appellants to undergo imprisonment for life and

also to pay fine of Rs.500/-, in default of payment of fine to undergo

further R.I. for a period of one month respectively.

5. Aggrieved by the impugned judgment of conviction and

consequent order on sentence, the appellants as well as Vijay Pardeshi

preferred separate appeals. During the pendency of the appeal, Vijay

Pardeshi died and as such the appeal against him stood abated.

6. Mr. Viraj R. Datar, advocate and Mr. Bhupesh Narula, advocate

for the respective appellants have argued almost on similar lines.

During the course of arguments, learned counsels for the appellants,

on instructions from the respective appellants, gave up their plea

against the finding of the learned trial Judge in the impugned judgment

on the factual matrix of the case i.e. the appellants along with Vijay

Pardeshi had given kicks and fist blows to the deceased resulting in as

many as 14 injuries on the deceased. They have, however, submitted

that the learned Trial Court has erred grossly in not appreciating the

true scope and applicability of Section 34 IPC while holding the

appellants guilty for the offence punishable under Section 302 IPC with

the aid of Section 34 IPC. They have submitted that the learned Trial

Court ought to have considered that there was no evidence whatsoever

of any pre-concert amongst the appellants and Vijay Pardeshi and that

the incident was a sudden occurrence in which the deceased was given

kicks and fist blows and that no weapon was used by anyone of them.

In view of the aforesaid factual matrix, it is submitted on behalf of the

appellants that there was no occasion for drawing an inference that the

appellants and their co-accused Vijay Pardeshi shared common

intention to cause death of the deceased and they gave beating to him

in furtherance of such intention. According to the learned counsels for

the appellants the only inference which could be gathered from the

facts and circumstances of the case is that the appellants gave beating

to the deceased in furtherance of their common intention to cause

hurt, simple or grievous, to the deceased.

7. Learned counsel for the State, on the other hand, has defended

the impugned judgment of conviction. He has submitted that from the

evidence on record, it is proved that appellants as well as their co-

accused Vijay Pardeshi were beating the deceased by giving him kicks

and fist blows in concert and the deceased was so brutally beaten that

he died within hours. Not only this, appellant Lakhan @ Bijender @

Mintu, as per evidence, had struck his head against the chest of the

deceased, which is vital part of the body. He has also pointed out that

Vijay Pardeshi had placed his foot on the chest of the deceased and

said that "he had remained in jail because of the deceased and he

would not let him go alive", which circumstances, it is submitted, are

sufficient to infer common intention on the part of the appellants and

Vijay Pardeshi to cause death of the deceased. Thus, according to the

learned counsel for the State, the appellants have been rightly

convicted under Section 302 IPC with the help of Section 34 IPC.

8. We have considered the submissions made by respective parties

and perused the material on record.

9. It is settled law that Section 34 of the Indian Penal Code is only a

rule of evidence and does not create a substantive offence. It lays

down a principle of constructive liability. When two or more persons

join actively in an assault on a third person, they are responsible,

irrespective of the individual role played, for the injuries caused to the

victim to the extent to which they share a common intention to cause

such injuries. In order to invoke Section 34 IPC to hold a person

constructively liable for the act of someone else, the onus is heavy on

the prosecution to prove the common intention. Common intention

pre-supposes a pre-concert to commit an offence. It is generally not

possible to get direct evidence of pre-meditation to commit the offence

between the parties. The common intention of the parties, however,

can be inferred from the accompanying facts and circumstances of the

case, such as the role played by the accused persons immediately

before or after the occurrence, the words spoken or uttered, the nature

of the weapon used and nature of injuries caused to the victim etc.

10. In the case of Pandurang and Others Vs. State of

Hyderabad, AIR 1955 SC 216, the Hon‟ble Supreme Court, while

discussing the applicability and scope of Section 34 IPC and the nature

of evidence of prior concert, observed thus:

"32. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged

plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: -„Mahbub Shah v. King Emperor', AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: AIR 1925 PC 1 at pp 5 & 6 (A) and AIR 1945 PC 118 (B). As their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice.

33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre- arranged plan however hastily formed and rudely conceived. But pre- arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.

34. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack, not even immediately before. Pandurang is not even of the same caste as the others Bhilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But, to quote the Privy Council again, "the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".

But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time- honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (Sarkar's Evidence, 8th edition, page 30)".

11. From the legal principle enunciated in the above said judgment, it

transpires that common intention as envisaged in Section 34 IPC can

be established by direct as well as the circumstantial evidence. In case

of circumstantial evidence, the Court is required to look into the

accompanying facts and circumstances of the case to infer common

intention. The common intention need not be arrived at much prior to

the occurrence, it could develop suddenly. If the prosecution fails to

establish the common intention or pre-arranged plan in such cases,

each participant to the occurrence would be individually liable for

whatever injury he had caused to the victim but none would be

vicariously liable for the act of any of the others.

12. In the instant appeals, case of the prosecution as it unfolds from

the record is that the appellants along with Vijay Pardeshi were found

giving kicks and fist blows to the deceased Mahender Singh. He

suffered as many as 14 injuries. There is no evidence of any weapon

having been used nor there is any evidence of any previous enmity or

motive on part either of the appellants to cause death of the deceased.

As per the MLC Ex.PW15/H, the deceased was admitted to the hospital

with the alleged history of assault with alcohol ingestion. Therefore, a

possibility cannot be ruled out that the deceased under the influence of

liquor was causing nuisance, which prompted the appellants and Vijay

Pardeshi to beat him. The appellants admittedly were giving kicks and

fist blows to the deceased, therefore, they cannot be attributed with

the knowledge that such physical beating given by them to the

deceased would result in his unfortunate demise. In the background of

above factual matrix, we find it difficult to sustain the view of the

learned Additional Sessions Judge that the appellants acted in

furtherance of their common intention to cause death of the deceased.

The only inference which could be gathered from aforesaid facts could

be that the appellants, when they collectively started beating the

deceased, developed common intention to cause grievous hurt to the

deceased as while brutally kicking and giving fist blows to the

deceased they were supposed to have known that their collective acts

would result in grievous injury to the deceased.

13. Once the prosecution has failed in establishing that the

appellants while beating the deceased shared a common intention to

cause his death, they cannot be convicted under Section 302 IPC with

the aid of Section 34 IPC. In view of the decision in the case of

"Pandurang and Others Vs. State of Hyderabad" referred to

above, once the plea of common intention fails to bring home the

charge of murder against the appellants or anyone of them, the

prosecution was required to prove beyond doubt on record that which

of the blows inflicted upon the deceased proved fatal and also to link

the blow or blows with the individual appellants or anyone of them. In

the instant case, the prosecution has not been able to prove individual

blows inflicted by the specific appellant(s) resulting in specific injuries

to the deceased. Thus, it is not established that the blow caused by

which of the appellant(s) was the fatal one, therefore, none of the

appellants in the absence of such proof can be convicted for murder of

the deceased.

14. However, from the facts discussed above, clearly a common

intention on the part of the appellants and their co-accused to cause

grievous hurt to the deceased is made out. Therefore, we partly

accept the appeal and modify the judgment to alter the conviction of

the appellants from under Section 302 IPC read with Section 34 IPC to

the offence punishable under Section 325 IPC read with Section 34 IPC.

We also modify the impugned order on sentence passed by the learned

trial Judge and replace it by the order of sentence directing respective

appellants to undergo rigorous imprisonment for the period of three

years each.

15. We have been informed that each of the appellants have already

suffered incarceration for a period of more than three years during the

investigation and trial of this case. Therefore, there is no need to take

them into custody. Their bail-cum-surety bonds accordingly stand

discharged.

16. Appeals are allowed to the aforesaid extent.

AJIT BHARIHOKE, J.

SEPTEMBER 14, 2009                          SANJAY KISHAN KAUL, J.
pst