Jitender @ Kukki & Ors. vs State (Govt. Of N.C.T. Of Delhi)
2011 Latest Caselaw 1587 Del

            IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. APPEAL NO. 189/2010

%              Judgment decided on: 21st March, 2011

JITENDER @ KUKKI & ORS.                        .....APPELLANTS

                         Through:   Mr. R.M. Tufail, Mr. Farooq
                                    Choudhary & Mr. Vishal
                                    Sehijpal, Advocates
                         Versus

STATE (GOVT. OF N.C.T. OF DELHI)                 .......RESPONDENT

                         Through:   Mr. Arvind Gupta, APP


Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

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

       2. To be referred to Reporter or not?               No

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

A.K. PATHAK, J. (Oral)

1. Vide judgment dated 25th January, 2010, appellants have

been convicted under Sections 307/34 IPC by the Trial Court.

Each of the appellant has been sentenced to undergo rigorous

imprisonment for seven years with fine of `10,000/- and in

default of payment of fine to undergo simple imprisonment for

two months under Sections 307/34 IPC. Appellant Jitender has

also been convicted under Sections 25/27 of the Arms Act and

sentenced to undergo rigorous imprisonment for two years with

fine of `1,000/- and in default of payment of fine to undergo

simple imprisonment for fifteen days. Sentences of Jitender @

Kukki have been directed to run concurrently. Benefit of

Section 428 Cr.P.C. has also been given to the appellants.

2. It is this judgment which is under challenge in this appeal.

3. Factual matrix as unfolded is that Jitender @ Kukki,

Rajesh Kumar and Ram Kumar @ Babloo are real brothers.

Injured Maharaj Singh is their cousin. There was a property

dispute pending between the parties before the revenue

authorities. Satender @ Chand and Sanjeev are brothers of

appellants but they were favouring Maharaj Singh in the

property disputes. On 21st March, 2005, Maharaj Singh had

gone to the office of Tehsildar in connection with the property

case. He returned home at about 3 PM and came to know that

Jitender @ Kukki had quarreled with Satender @ Chand and

Sanjeev in his absence. Accordingly, he went to the house of

appellants to find out as to why they had picked up a quarrel

with Chand. Complainant Seema, who is sister of Maharaj

Singh, followed him. When she reached at the house of the

appellants, she noticed a verbal altercation going on between

Maharaj Singh and the appellants, namely, Jitender @ Kukki,

Rajesh Kumar and Ram Kumar @ Babloo. Sanjeev and

Satender @ Chand were also present there. They were

supporting Maharaj Singh. After sometime, verbal altercation

resulted in scuffling between appellants on the one hand and

Maharaj Singh, Sanjeev and Satender @ Chand on the other.

While scuffle was going on, Jitender @ Kukki picked up a double

barrel gun from his room and fired at Maharaj Singh twice while

uttering "aaj zamin jaydad ke is jhagare ko khatm kar deta

haun". Maharaj Singh sustained gunshot injuries on his arm

and chest. He was removed to Sant Parmanand Hospital.

4. FIR was registered on the statement of complainant Seema

wherein she has narrated the incident in the manner as has

been described in para 3 hereinabove. Maharaj Singh was

treated for his injuries in Sant Parmanand Hospital by the

doctors. Dr. Sameer Kapoor opined the injuries of Maharaj

Singh as "dangerous". During the investigation double barrel

gun was seized.

5. Maharaj Singh has been examined as PW3. Complainant

Seema has been examined as PW12. Satender @ Chand has

been examined as PW6. Sanjeev has been examined as PW20.

Dr. Alok Kumar Jain has been examined as PW2. He has

proved MLC of Maharaj Singh as Ex. PW2/A. Dr. Vipin Rastogi

has been examined as PW4. He has proved the opinion

regarding the injuries of Maharaj Singh. He has deposed that

Dr. Sameer Kapoor had opined the injuries as "dangerous".

Investigating Officer has been examined as PW19. These were

the material witnesses. Other witnesses are formal in nature,

being police officials who were joined with the investigation at

one stage or the other stage. After prosecution closed its

evidence, statements of appellants under Section 313 Cr.P.C.

were recorded. Case of the appellants is that of simple denial.

They stated that they had been falsely implicated in this case.

Appellants took a plea that they were not present at the spot at

the time of incident. In support of this plea, they have examined

five witnesses in their defence as DW1 to DW5. All these defence

witnesses are close relatives of appellants being their mother,

bua, brother-in-law.

6. Brothers of appellants, PW20 Sanjeev and PW6 Satender @

Chand, as per the prosecution, were eye witness to the incident,

inasmuch as appellants had even scuffled with them. However,

they have not supported the prosecution case. They were

declared hostile and cross-examined by the learned Additional

Public Prosecutor but nothing could be elicited from them which

could go in favour of prosecution. However, PW3 Maharaj Singh

and PW12 Seema have fully supported the prosecution case.

They have narrated the incident in line with the prosecution

story as set out in the FIR except with minor improvements

about role of Rajesh and Ram Kumar @ Babloo of giving

exhortation and catching hold. Trial Court has found their

testimonies to be trustworthy, reliable, credible and sufficient

enough to reach a definite finding that Jitender @ Kukki had

fired at Maharaj Singh twice with the double barrel gun

resulting in "dangerous" injuries to him. His this act attracted

the ingredients of Section 307 IPC. Trial Court was also of the

view that appellants Rajesh Kumar and Ram Kumar @ Babloo

were sharing common intention with Jitender @ Kukki,

inasmuch as Rajesh exhorted that Maharaj Singh was the root

of quarrel between them over the property disputes and he be

finished that day. Defence taken by the appellants that they

were not present at the spot was disbelieved since in the cross-

examinations of PW3 and PW12 their presence was not

disputed, inasmuch as suggestion was given that Maharaj Singh

had beaten Rajesh after picking up quarrel with him.

7. During the course of arguments, challenge to the

conviction of appellant Jitender @ Kukki under Section 307 IPC

has been given up on merits. Learned counsel has confined his

arguments as regards to the applicability of Section 34 IPC qua

appellants Rajesh and Ram Kumar @ Babloo. He has

vehemently contended that appellants were not aggressors.

They had not gone to the house of Maharaj Singh armed with

weapons so as to cause injuries on his person. It is Maharaj

Singh who had come to the house of appellants and picked up a

quarrel with them. Initially, a verbal altercation took place

between them over the property dispute which led to scuffling

between them. In the heat of the moment, it appears that

Jitender @ Kukki had picked up a gun lying in the room and

fired at Maharaj Singh. Appellants were not armed with any

weapon. They did not play any overt act. They did not give any

exhortation nor caught hold of Maharaj Singh as per the FIR.

Statements made by PW3 and PW12 attributing role to Rajesh

Kumar of giving exhortation is nothing but material

improvement and cannot be read against him. Similar is the

contention with regard to the allegation of „catching hold‟ leveled

by PW3 Maharaj Singh while deposing in the court. In nutshell,

his contention is that Rajesh and Ram Kumar @ Babloo cannot

be convicted under Section 307 IPC by taking aid of Section 34

IPC in the facts and circumstances of this case. Reliance has

been placed on Devi Lal & Anr. vs. State of Rajasthan, AIR

1971 SC 1444, Dajya Moshya Bhil vs. State of

Maharashtra, AIR 1984 SC 1717, Vencil Pushpraj vs. State

of Rajasthan, 1991 Crl.L.J. 452 and Ramashish Yadav &

Ors. vs. State of Bihar, (1999) 8 SCC 555.

8. Per contra, learned APP has contended that common

intention can develop on the spur of the moment. It is not

necessary that only those assailants who attack on a person in a

pre-arranged plan would attract Section 34 IPC. It is contended

that PW3 Maharaj Singh has categorically stated that appellants

had scuffled with him; thereafter Ram Kumar @ Babloo caught

hold of his right hand and twisted it, while Jitender @ Kukki

caught hold of him by his collar and Rajesh started slapping

him. Rajesh also exhorted that Maharaj Singh be finished that

day, at which Jitender @ Kukki fired gun shots. PW2 Seema

has also deposed about the exhortation given by Rajesh Kumar

to finish Maharaj Singh. According to him, Rajesh as well as

Ram Kumar @ Babloo had played overt act. This itself shows

that they were sharing common intention with Jitender @ Kukki

to cause such injuries on the person of Maharaj Singh and had

knowledge of the fact that had victim died by such injuries they

would be guilty of committing murder. In nutshell, his

contention is that Trial Court has rightly convicted Rajesh and

Ram Kumar @ Babloo under Section 307 IPC with the aid of

Section 34 IPC.

9. I have considered the rival contentions of both the parties,

scrutinized the statements of PW3 and PW12 and perused the

judgments, reliance whereupon has been placed. In the FIR,

complainant had not assigned role of exhortation and catching

hold to Rajesh and Ram Kumar @ Babloo. In the FIR, PW12 had

stated that after Maharaj Singh returned from the court he came

to know that Jitender @ Kukki had quarreled with Satender @

Chand in his absence. He went to the house of Jitender @

Kukki to enquire from him as to why he had quarreled with

Satender @ Chand. She also followed him. When she reached

there she found Jitender @ Kukki, Rajesh and Ram Kumar @

Babloo quarrelling with Maharaj Singh, Sanjeev and Satender @

Chand. Initially, a verbal altercation took place between them

which later on resulted in scuffling between Maharaj Singh,

Sanjeev and Satender @ Chand on the one hand and the

appellants Jitender @ Kukki, Rajesh Kumar and Ram Kumar @

Babloo on the other. In the meanwhile, Jitender @ Kukki

brought out a double barrel gun from his room and fired at

Maharaj Singh twice by saying that he would finish the root of

property disputes that day. FIR was registered immediately after

the incident on the statement of eye-witness PW12 Seema. In

the FIR she did not allege that Rajesh had given exhortation and

Ram Kumar @ Babloo had caught hold of hand of Maharaj

Singh. Statement to this effect was made by her for the first

time in the court. Overt acts of Rajesh and Ram Kumar @

Babloo, as given by PW12 are material improvements made by

her and have to be ignored. The version of PW3 Maharaj Singh

is also contrary to FIR with regard to the overt acts played by

Rajesh and Ram Kumar @ Babloo and has to be overlooked.

From the overall testimonies of PW3 and PW12 it can be

deduced that some property dispute was going on between the

appellants and Maharaj Singh. Brothers of appellants, namely,

Sanjeev and Satender @ Chand had been supporting Maharaj

Singh in the said dispute. On 21st March, 2005 Maharaj Singh

had gone to the office of Tehsildar in connection with the

property disputes. After he returned home from the court, at

about 3 PM he came to know that Jitender @ Kukki had

quarreled with Satender @ Chand in his absence. Thereafter, he

went to the house of appellants to find out as to why Jitender @

Kukki had quarreled with Satender @ Chand earlier in the day.

Verbal altercation broke out between them which resulted in

scuffling between appellants on the one hand and Maharaj

Singh, Sanjeev and Satender @ Chand on the other. While

scuffle was going on, Jitender @ Kukki all of a sudden picked up

a double barrel gun and fired twice at Maharaj Singh causing

dangerous injuries to him. From the facts narrated above it is

clear that initially all the appellants were unarmed. They were

present in their house. They had not gone to the house of

Maharaj Singh with pre-meditated concert to launch an assault

on him. In the heat of the moment Jitender @ Kukki picked up

a gun and fired at Maharaj Singh. It was his individual act.

10. In Vaijayanti vs. State of Maharashtra (2005) 13 SCC

134, Supreme Court has held that Section 34 of the Indian

Penal Code envisages that "when a criminal act is done by

several persons in furtherance of the common intention, each of

such persons is liable for that act, in the same manner as if it

were done by him alone". The underlying principle behind the

said provision is joint liabilty of persons in doing of a criminal

act which must have found in the existence of common intention

of enmity in the acts in committing the criminal act in

furtherance thereof. The law in this behalf is no longer res

integra. There need not be a positive overt act on the part of the

person concerned. Even an omission on his part to do

something may attract the said provision. But it is beyond any

cavil of doubt that the question must be answered having regard

to the fact situation obtaining in each case. In Krishnan vs.

State of Kerala 1996 (10) SCC 508, Supreme Court held that

for the purpose of invoking Section 34 IPC, prosecution must

establish that all the accused persons had shared common

intention which may be inferred by reason of overt act qua each

of the accused.

11. In Devi Lal's case (supra), Supreme Court has held that

under Section 34 IPC 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. The words "in furtherance of common

intention of all" are a most essential part of Section 34 of the

Indian Penal Code. It is common intention to commit the crime

actually committed. This common intention is anterior in time to

the commission of the crime. Common intention means a pre-

arranged plan. In Dajya Moshya Bhil's case (supra), Supreme

Court has held that in order to attract Section 34 IPC it is not

sufficient to prove each of the participating culprits had the

same intention to commit the crime, what is the requisite

ingredient of Section 34 IPC is that each must share intention of

the other appellants. In Ramashish Yadav's case (supra),

Supreme Court has held that Section 34 IPC lays down a

principle of joint liability in the doing of a criminal act. The

essence of that liability is to be found 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 of Section 34 is the element of participation in action.

The common intention implies acting in concert, existence of a

pre-arranged plan which is to be proved either from conduct or

from circumstances or from any incriminating facts. It requires

a pre-arranged plan and it presupposes prior concert.

Therefore, there must be prior meeting of minds. The prior

concert or 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 on the spur of the moment

but there must be pre-arrangement or pre-meditated concert.

12. In the facts of the present case, no such evidence has

come on record that Rajesh and Ram Kumar @ Babloo were

sharing common intention with Jitender @ Kukki in launching

murderous assault on Maharaj Singh. They were not the

aggressor party. Appellants had not gone to the house of

Maharaj Singh armed with weapons in order to level murderous

assault on him. It is the other way round; Maharaj Singh had

come to the house of the appellants, he had come to their house

to enquire as to why Jitender @ Kukki had fought with Satender

@ Chand earlier in the day. It appears that a verbal altercation

took place between appellants and Maharaj Singh and thereafter

both the parties started scuffling with each other and while

scuffle was going on, Jitender @ Kukki went into his room and

took out his double barrel gun and fired twice at Maharaj Singh.

In these facts, it cannot be said that the assault was pre-

meditated. There appears no meeting of mind between the

appellants, in the peculiar facts of the present case. The act

committed by Jitender @ Kukki was his individual act for which

Rajesh and Ram Kumar @ Babloo cannot be held responsible.

Accordingly, conviction of Rajesh Kumar and Ram Kumar @

Babloo under Section 307 IPC taking aid of Section 34 IPC is set

aside. However, sufficient evidence has come on record that

they had scuffled with Maharaj Singh and the persons

supporting him. Their this act would certainly amount to

causing simple hurt to them. Accordingly, appellants Rajesh

and Ram Kumar @ Babloo are convicted under Section 323 IPC.

Their sentences are reduced to one year which period they have

already undergone. They be released if not wanted in any other

case.

13. Conviction of Jitender @ Kukki under Section 307 IPC and

Sections 25/27 of the Arms Act are affirmed. Learned counsel for

the appellants has contended that the incident is an offshoot of a

property dispute between the family members; appellant Jitender

@ Kukki has no previous criminal record; he is a married man

having one son aged about 12 years; incident took place on spur of

moment for which he has already suffered incarceration for about

34 months, therefore, he be released on the sentence already

undergone by him. As against this, learned APP has contended

that appellant Jitender @ Kukki had fired twice with a double

barrel gun aiming at Maharaj Singh, resulting in dangerous

injuries to him. Offence being serious in nature, he is not entitled

to any leniency. Keeping in mind the totality of the facts and

circumstances of the case, sentence of appellant Jitender @ Kukki

is reduced to five years from seven years under Section 307 IPC.

Sentence awarded by the Trial Court under the Arms Act is

maintained. Both the sentences shall run concurrently. Benefit of

Section 428 Cr.P.C. is also given to the appellant.

14. Appeal is disposed of in the above terms.

15. A copy of this order be sent to Superintendent Jail for due

compliance and serving it on the appellants.

A.K. PATHAK, J.

MARCH 21, 2011/rb