Kameshwar vs The State (Delhi Admn.)
2010 Latest Caselaw 787 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI



                    CRL. APPEAL NO. 187 OF 1997

%                            Date of Decision: 10th February, 2010

KAMESHWAR                               ...APPELLANT
                        Through:        Mr. Dinesh Chopra,
                                        Advocate

                            VERSUS

THE STATE (DELHI ADMN.)                 ...RESPONDENT
                  Through:              Mr. Pawan Sharma,
                                        Standing Counsel

      CORAM :-
      HON'BLE MR. JUSTICE A.K. SIKRI
      HON'BLE MR. JUSTICE AJIT BHARIHOKE

      1.     Whether Reporters of Local newspapers
             may be allowed to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be
             reported in the Digest?


AJIT BHARIHOKE, J. (ORAL)

1. The instant appeal has been preferred by the appellant

Kameshwar against the impugned judgment of the learned trial Judge

dated 18.12.1996 convicting the appellant on charges under Section

302 and 307 IPC read with Section 34 IPC as also the charges under

Section 452/394 and 397 IPC and the consequent order on sentence

of the even date awarding life sentence to the appellant for the

offence punishable under Section 307 IPC, life sentence and fine of Rs.

1000/- for the offence under Section 302/34 IPC, RI for the period of 7

years and fine of Rs.1000/- for the offence under Section 394 IPC, RI

for the period of 7 years for the offence under Section 397 IPC besides

RI for the period of 3 years and fine of Rs. 500/- for the offence under

Section 452 IPC.

2. Briefly stated, case of the prosecution is that PW4 R. Ganeshan,

husband of PW1 Revati Ganeshan, was serving as Manager (Faculty),

Regional Staff Training College, Canara Bank at New Delhi. They were

living in a flat on the first floor of 26, Rajindra Park, allotted to them by

the bank. It was a furnished flat and its maintenance was the

responsibility of the bank. They had a wet grinder and on two or three

occasions, it was repaired by Micromax Marketing Pvt. Ltd. As per

practice, after the repairs, the representative of the company would

revisit and get the voucher/service report signed by the

Geneshans and then the company would claim the service charges

from the bank. Appellant Kameshwar is claimed to be an employee of

Micromax Marketing Pvt. Ltd.

3. On 19.7.91 at around 11.00 am, PW1 Revati Ganeshan was

alone in her flat along with her one year and nine months' old son

Shreyas. When she was preparing to give bath to her son, the door

bell rang and Revati Ganeshan responded to the bell by opening the

door. The appellant and his co-accused were present at the door and

as she recognized them, she allowed them in. The appellant gave

some slips for signatures of PW1 in acknowledgement of the services

already rendered and while she was in the process of writing down her

name and address on the slips, the appellant, all of a sudden placed a

razor on the throat of her child. When she asked why the appellant

was hurting the child, the co-convict caught hold of the child and the

appellant held her in his grip and inflicted razor injury on her neck.

She tried to save herself and ran outwards shouting "Mary Diya, Mar

Diya". In the meantime, the co-convict gave a razor blow on the

throat of her son. Hearing her screams, many people gathered and

one Neelima rushed upstairs. The appellant tried to scare her with the

razor and both of them tried to escape. The appellant was however

apprehended by the police. Revati and her son were both taken to

the hospital where ultimately the son died due to the aforesaid razor

injury.

4. The learned Trial Court, on conclusion of trial, relying upon the

testimony of PW1 Revati Ganeshan and the other witnesses convicted

the appellant and his co-convict and sentenced them accordingly.

5. During the course of the arguments, on the instructions of the

appellant, learned counsel submitted that the appellant accepts the

verdict of the trial Judge on all the counts except his conviction for

murder of the child Shreyas under Section 302 IPC with the aid of

Section 34 IPC. He has also challenged the sentence of life

imprisonment awarded to him for the offences punishable under

Section 307 IPC and prayed for a lesser sentence on the ground that

the appellant has already undergone incarceration for a period of

more than 12 years and 8 months and also that at the time of the

occurrence, the appellant was a young boy of around 18 years and he

did not realize the import of his act.

6. Learned counsel for the appellant has submitted that impugned

conviction of the appellant for the offence punishable under Section

304 IPC read with Section 34 IPC is essentially based upon the eye-

witness account given by PW1 Revati Ganeshan. He has drawn our

attention to relevant part of statement of PW1 Revati Ganeshan,

which narrates the manner in which the deceased child was killed,

which is reproduced thus:

".......On hearing the screams of my child, I turned and saw the accused pressing the neck of my son Sheryas with the blade of the razor. I snatched the child from him but the accused Kameshwar Singh pushed my child and started stabbing me with that blade of razor repeatedly at my neck and around it. I tried to push him up and in that process, I got cuts on the fingers of my both hands. I was fighting and shouting for help and was trying to push the accused out in a bid to rescue myself. During that period, my child Sheryas was caught hold of by the other accused (Witness pointed out towards accused Debu Kumar and he too was inflicting injuries on the neck of my said child with a sharp blade of razor)....."

7. Learned counsel for the appellant has submitted that as per the

case of the prosecution, the appellants had trespassed into the house

of the complainant with the common intention to commit robbery.

Referring to the above referred version of PW1 Revati Ganeshan,

learned counsel submitted that from the aforesaid evidence, it is

apparent that while a scuffle was going on between PW1 Revati

Ganeshan and the appellant, the co-convict Debu Kumar, without any

reason, suddenly inflicted razor injury on the throat of the child, which

act of Debu Kumar was not at all necessary for achieving the end of

robbery. Therefore, by no stretch of imagination, it could be said that

the appellant shared a common intention with his co-convict to kill the

child. Thus, the learned Trial Court ought not to have invoked Section

34 IPC to foist the charge under Section 302 on the appellant.

8. Learned Standing Counsel for the State, on the other hand, has

argued in support of the impugned judgment. He has submitted that

from the above quoted testimony of PW1 Revati Ganeshan, it is

established on record that the appellant and his co-accused had

trespassed into the house of PW1 having armed themselves with a

razor with a view to commit robbery and therefore, the appellant,

under the natural course of circumstances, was expected to know

that there was a distinct possibility of razor being used while giving

effect to the common intention to commit robbery or while trying to

escape from the spot of occurrence. Thus, he submitted that the

learned Trial Judge has rightly concluded that the appellant shared a

common intention with his co-accused Debu to commit murder of the

child.

9. In order to properly appreciate the arguments advanced by the

parties, it would be useful to have a look on Section 34 IPC, which is

reproduced thus:

"[34. Acts done by several persons in furtherance of common intention.-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]"

10. On bare reading of the above provision, it is clear that in order

to hold a person liable for the criminal act committed by another

person under the provisions of Section 34, following two ingredients

must be satisfied:-

(i) There was common intention in the sense of pre- arranged plan between the two;

(ii) The person sought to be held liable had participated in some manner in the act constituting the offence.

11. From the above quoted testimony of PW1 Revati Ganeshan,

which obviously goes unchallenged in view of the appellant conceding

his appeals against conviction for offences under Section 452, 307 and

394/397 IPC, it stands firmly established that the appellant shared

common intention with his co-accused Debu Kumar to commit robbery

in the house of PW-1 Revati Ganeshan and to achieve that end they

both trespassed into her house. Now the question arises if the

appellant also shared common intention with his co-accused to

commit murder of the child Shreyas? There is no direct evidence to

prove such common intention, therefore, in order to find the answer to

the above question, we have to look into the accompanying

circumstances disclosed by PW1 in her above testimony. The

submission of learned Standing Counsel for the State is that when the

appellant and his co-accused, duly armed with razors, trespassed into

the house of PW1 Revati Ganeshan to commit robbery, they were

reasonably expected to know that in the process of robbery they

might come across resistance by someone, which may necessitate

user of razor and result in the death of someone. Thus, according to

learned Standing Counsel for the State, murder of child Shreyas by

Debu Kumar, co-accused is an act in furtherance of the common

intention to commit robbery.

12. There can be no doubt that, if, while committing robbery a co-

accused kills someone who resists the robbery and causes obstruction

to their escape, such act would be covered within the meaning of an

act committed in furtherance of common intention to attract Section

34 IPC. Facts of this case are, however, peculiar.

13. The victim in this case is a child of one year and nine months,

who obviously neither could have resisted the attempt to robbery nor

he could have obstructed the escape of the appellant and his co-

accused nor, because of his tender age, he could have helped the

investigation to fix the identity of the robbers, therefore, it cannot be

said that murder of the child was committed to further the common

intention to commit robbery. The appellant could not even have

imagined that his co-convict Debu Kumar would suddenly inflict a

razor injury to the child without any reason. Thus, in our view, the act

of co-accused Debu Kumar in causing fatal injury to the child was a

strong act, which cannot be termed as an act committed in

furtherance of achieving the end of the robbery. Thus, in our view, the

learned trial Judge has erred in invoking Section 34 IPC to hold the

appellant guilty of murder of the child, which he did not commit, with

the aid of Section 34 IPC. Thus, we set aside the conviction of the

appellant under Section 302 read with Section 34 IPC and acquit him

of the said charge.

14. Learned counsel for the appellant has also challenged the

sentence of life imprisonment awarded to him under Section 307 IPC.

He submitted that the appellant has been under incarceration for a

period of more than 12 years and 8 months. He belongs to a poor

background and he was a young man of about 18 years at the time of

commission of offence and he did not even realize the gravity of the

act committed by him. Learned counsel submits that the appellant

has realized his mistake and he deserves at least one more chance to

mend his ways and become a useful member of the society.

13. In view of the above, coupled with the fact that there is no

previous criminal record of the appellant and that the appellant has

honestly admitted his guilt, we take a lenient view and convert the

sentence of imprisonment of life awarded for the offence under

Section 307 IPC to RI for a period of 12 years and to pay a fine of Rs.

10,000/-, in default, he shall undergo rigorous imprisonment for six

months. All other sentences are maintained.

14. As per the nominal roll, the appellant has already undergone

imprisonment for a period of 12 years and 8 months and he has also

earned remission for a period of 02 years 07 months. Since he has

already undergone incarceration for a period more than the sentence

awarded, thus, there is no need to take the appellant into custody to

be forwarded to Jail. The appellant is on bail. His bail bond and

surety bond stand discharged.

15. This appeal is accordingly disposed of.

A.K. SIKRI, J.

AJIT BHARIHOKE, J.

FEBRUARY 10, 2010 pst/ks