Mukesh Kumar vs State
2013 Latest Caselaw 5375 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Reserved on:       29th October, 2013
%                                    Date of Decision:     22nd November, 2013


+                       CRIMINAL APPEAL No.89/2013


RANBIR @ PAPPU & ANR.                    ..... Appellants
             Through: Mr.Ajayinder Sangwan, Mr.Dushyant
                      Yadav, Mr.Tarunesh Kumar and
                      Mr.Pradeep Kumar, Advocates.


                          versus



STATE                                                           ..... Respondent

                          Through:         Mr.Sanjay Lao, APP for the State.


+                CRIMINAL APPEAL No.1430/2012


    MUKESH KUMAR                                             ..... Appellant
              Through:                     Mr.Rohit Bhardwaj, Mr.Narender
                                           Kumar & Ms.Naina, Advocates.


                          versus


STATE                                                           ..... Respondent
                          Through:         Mr.Sanjay Lao, APP for the State.





 +                CRIMINAL APPEAL No.185/2013

DAULAT RAM                                               ..... Appellant
                          Through:         Mr.Sushil Bajaj & Mr.Aditya Sharma,
                                           Advocates.

                          versus


STATE                                                           ..... Respondent
                          Through:         Mr.Sanjay Lao, APP for the State.


CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J:

1. The present appeals have been preferred by Ranbir @ Pappu,

Ravi @ Ashu, Mukesh Kumar and Daulat Ram against the judgment

dated 30th August, 2012 passed by the learned Additional Sessions

Judge, North West, Rohini, Delhi in case FIR No.1081/2006, P.S.

Nangloi whereby the appellants have been convicted under Sections

302/34 of the Indian Penal Code (hereinafter referred to as „IPC‟).

Vide order on sentence dated 27th November 2012, all the appellants

have been sentenced to undergo imprisonment for life and fine of

Rs.8,000/- each and in default of payment of fine, they shall further

undergo SI for six months. Benefit of Section 428 of Code of Criminal

Procedure (hereinafter referred to as „Cr.P.C.‟) was ordered to be given

to the appellants.

2. Briefly stated, the facts giving rise to the present appeals are that

complainant Suresh used to visit his widow sister Sarla, widow of late

Rajbir Singh, r/o House No.97/1, Village Mundka, Delhi in 8-10 days

and his younger brother Sudhir @ Dhillu used to stay at her house

from the last 7/8 years for the help of their sister. On 12.10.2006 at

about 10.00 p.m., complainant Suresh was sitting on cot in the

courtyard of his sister‟s house and Sudhir also reached there. His sister

Sarla told that Pappu had come and was talking of returning the money

of Rs.2 lakhs borrowed from her two years ago and she asked Sudhir to

bring the money from Pappu. Immediately, Sudhir went outside to

bring the money from Pappu. After some time, they heard the noise

from the gali „maro sale ko, jyada paise wala banta hai‟. They also

heard the noise of their brother Sudhir „bachao-bachao‟. The

complainant immediately saw in the gali where under the streetlight

and near the electric pole adjoining their house, in front of their gate,

appellant Ranbir @ Pappu along with the appellants Daulat and

Mukesh had caught hold of his brother Sudhir @ Dhillu and giving

him leg and fist blows. Appellant Ranbir @ Pappu had caught hold of

Sudhir from his neck and his son namely, Ashu (appellant) gave lathi

blow on the head of Sudhir. The complainant ran for help of his

brother after opening the door. In the meanwhile, appellants gave 2-3

more blows to Sudhir and thereafter Daulat and Mukesh ran on a motor

cycle already standing there towards Phirni Road. The appellant

Ranbir @ Pappu and Ashu also ran from there in the gali towards the

village. Sudhir fell on the ground. In the meanwhile, Sunil and

Manish also reached there and shifted Sudhir to Sonia Hospital in the

car of one Chand. After examination, the doctors in the hospital

declared Sudhir „brought dead‟. Police was informed and DD No.45A

was recorded. ASI Om Prakash along with Constable John Patrick

reached at the spot and came to know that the victim Sudhir was

already shifted to Sonia Hospital. FIR under Sections 302/34 IPC was

registered and the investigation was marked to Insp. R.S. Malik.

3. On 26.10.2006, appellant Ranbir and Ashu were arrested.

Appellant Ashu got recovered the lathi with the help of which he hit

Sudhir from his house. The appellant Daulat and Mukesh were also

arrested who were friends of Ranbir. The appellant Mukesh got

recovered the motor cycle bearing registration No.DL4SAY-5392.

4. After completion of investigation, charge-sheet under Sections

302/34 IPC was filed, with the compliance of Section 207 Cr.P.C., the

case was committed to Sessions Court. Charges under Section 302/34

IPC were framed against all the appellants to which they pleaded not

guilty and claimed trial. The prosecution has examined as many as 22

witnesses and thereafter statements of appellants under Section 313

Cr.P.C. were recorded. Initially, the appellants Ranbir and Ravi opted

to lead defence evidence whereas accused Daulat and Mukesh did not

opt to lead any defence evidence. However, later on accused Ranbir

and Ravi also opted not to lead any defence evidence and defence

evidence was closed vide order of the trial Court dated 10.06.2011.

The trial was conducted leading finally to passing of the impugned

judgment and order on sentence.

5. Learned counsel for the appellants had contended that the

prosecution has failed to prove the offence beyond reasonable doubt

and the chain of events is not complete. More so the eye-witnesses

namely Suresh (PW-1) and Sarla (PW-2) have been planted by the

police whereas Sunil Kumar Vats @ Sonu (PW-5) and Manish Lakra

(PW-6) are not eye-witnesses of the incident. All the independent

witnesses are related witnesses and, therefore, also interested

witnesses. The present case is a blind murder and the real culprit is not

known to the prosecution and the family members of the deceased,

therefore, the appellants have been made scapegoats since there was

enmity between the appellants and the family of the deceased.

6. The counsel for the appellants urged that DD No.45A which was

recorded by Constable ASI Prem Singh (PW-9) at the instance of

wireless operator. DD No.45A was recorded at 10.30 p.m. on

12.10.2006 which finds mention a case of stabbing whereas the entire

case of prosecution is based on the injury caused by danda. Even in

the crime team report Ex.PW14/A and the statement of Head

Constable John Patrick (PW-13) regarding the application for

preservation of dead body submitted after registration of FIR mentions

a case of stabbing. It was further contended that the presence of

Suresh (PW-1) on the place of incident is highly doubtful. He has

neither identified the dead body of his brother nor has he informed the

police about the incident. Suresh (PW-1) has also not been named in

the MLC and only the names of Sunil and Manish are mentioned in the

MLC. If Suresh would have been present in the hospital, his name

would have been there in the MLC. There is a dispute between the

statements of prosecution witnesses regarding the place of recording of

statement of Suresh (PW-1). Suresh while appearing as PW-1 has

stated that his statement was recorded in the hospital. On the other

hand, ASI Om Prakash (PW-19) has initially stated that the statement

of Suresh was recorded in the hospital whereas in his cross-

examination, he has stated that the statement was recorded on the spot.

There are also improvements in the statements of PW-1 in the Court

where he has stated that Sarla (PW-2) followed him to the place of

incident and also that all the four appellants had pressed the neck of the

deceased by danda. However, these facts were not told by him in his

statement before the police and are material improvements. Sarla

(PW-2) is not an eye-witness to the incident as the presence of PW-2 is

not proved from the FIR. Also even Manish Lakra (PW-6) has stated

in his testimony that except Suresh, nobody was present at the spot

which is sufficient enough to rule out PW-2‟s presence on the spot.

Further, according to Sarla (PW-2) herself, the distance between her

house and the place of incident was 10-15 paces where one can reach

within 20 seconds but she took one minute to reach there and the

incident of fight continued for 5-7 minutes. Thereafter also, she did

nothing to save her brother. Learned counsel for the appellants also

submitted that there are no injuries to Suresh (PW-1) and Sarla (PW-2)

which further belies their claim. Also PW-2 neither did inform to the

police nor did she state any reason as to why she did not accompany

her injured brother to the hospital. This conduct is sufficient enough to

question the veracity of the testimony of these witnesses.

7. Learned counsel for the appellants further contended that the

prosecution has failed to prove the motive. The exact amount of loan

as given by Sarla (PW-2) to the appellant Ranbir @ Pappu is not

proved. In the FIR, it is mentioned that Rs.2 lakhs was given to the

appellant Ranbir by Sarla. The same fact was stated by Suresh (PW-1)

in his testimony. However, Sarla (PW-2) has stated in her testimony

before the trial Court that she had given few money (thode se) and

again stated Rs.2 lakhs were given and again stated that she paid a cash

amount of Rs.1,40,000/- in the presence of Sachin Kumar and

Rs.20,000/- were also paid. During her cross-examination, she stated

that the money was given in two instalments by way of Rs.1 lakh on

one occasion and Rs.40,000/- on another. These contradictions are

enough to show that the story of PW-2 has been cooked up. She has

also not disclosed that with her income, how was she able to manage

the alleged loan amount.

8. It was lastly contended by learned counsel for the appellants that

the recovery of danda at the instance of appellant Ashu is highly

unbelievable. Also, the ingredients of Section 300 are not established.

There was no intention to kill. As per the prosecution, appellants

Ranbir @ Pappu, Daulat and Mukesh were not armed and only when

the appellant Ravi @ Ashu came at the spot with danda and gave

danda blow, it resulted in the death of deceased Sudhir. To

substantiate charge under Section 302 read with Section 34, it must be

shown that the criminal act complained of was done by one of the

accused person in furtherance of a common intention of both or all of

the accused which in the present case is not made out. Reliance is

placed on Mithu Singh vs. State of Punjab, (2001) SCC (Crl.) 668,

Arun vs. State by Inspector of Police, Tamil Nadu, (2008) 15 SCC

501 and Naresh Kumar vs. State, Crl. A. No.432/2010 delivered by

this Court on 04.09.2013. Otherwise also, the appellants are entitled to

benefit of the Exception IV to Section 300 IPC.

9. Per contra, learned APP for the State contended that murder was

committed by the appellants and stands proved from the testimonies of

Suresh (PW-1) and Sarla (PW-2) who were both eye-witnesses to the

incident. There is no reason to disbelieve their testimony merely

because the said witnesses were related to the deceased. He contended

that the conviction can be based on the testimony of a single witness if

it proves to be reliable.

10. The appellant-Ranbir @ Pappu was holding the deceased from

the neck and the appellant Mukesh and Daulat were giving him leg and

fist blows. Appellant Ravi @ Ashu gave danda blow on the head of

the deceased Sudhir which proves that they had intention to cause

death of the Sudhir and, therefore, charge under Section 302/34 IPC is

proved. The contradictions pointed out in the testimonies of

prosecution witnesses are minor and do not go the root and core of this

case.

11. It was further contended by learned APP that the public persons

generally do not become the witnesses to the criminal proceedings and

hence the testimonies of prosecution witnesses cannot be ruled out in

their absence. It was also contended that the appellants are not entitled

to the benefit of faulty investigation.

12. We have given our thoughtful consideration to the submissions

made by learned counsel for the appellants and learned APP for the

State.

13. At this juncture, it would be pertinent to reproduce the testimony

of Suresh (PW-1) and Sarla (PW-2) who were the eye-witnesses to the

incident.

14. Suresh (PW-1) has stated that his sister was married with Rajbir

Singh who had expired about 10/11 years prior to this incident. His

sister was residing at her in-laws house and after death of his brother-

in-law Rajbir, he started living with his sister Sarla at her in-laws house

at Mundka. After 2/3 years, his brother Sudhir @ Dhillu (deceased)

had started living with his sister at her in-laws house and he also used

to visit at the house of Sarla usually after a gap of 10/12 days. On

12.10.2006, he was present at the house of his sister Sarla at Village

Mundka at about 10.00 p.m. He along with his sister were present at

her house and in the meantime his brother Sudhir @ Dhillu entered

into the house and his sister told Sudhir that Pappu @ Ranbir had come

to her house and told her that he was asking to return money that is

Rs.2 lakhs which was given to the appellant by his sister prior to the

incident. His brother Sudhir @ Dhillu immediately left the house of

her sister Sarla to receive money from Pappu and after some time, they

heard noise towards pond in a gali as they were sitting in the courtyard

of the house of Sarla. He heard the noise of his brother Sudhir

„bachao-bachao‟ and then he left the house and was followed by his

sister Sarla and reached at the gate of their house. They saw that

appellant Ranbir @ Pappu was holding his brother from neck and the

appellant Mukesh, Daulat were giving legs and fist blows to his brother

in the gali by the side of the gate. Immediately appellant Ashu also

reached there and he was having danda in his hand and the appellant

Ashu gave 2-3 danda blows on the head of his brother. Due to this

scuffle and injuries, his brother fell down on the ground and after that

all the four appellants pressed the neck of his brother Sudhir with

danda using force. They reached there to intervene but the appellants

Daulat and Mukesh ran away from the spot after the incident on the

motor cycle towards Phirni Road and remaining two appellants i.e.

Ranbir @ Pappu and Ashu ran towards their houses. After some

period, Sunil and Manish who were the residents of same locality

reached at the spot and took his injured brother to Sonia Hospital and

he also accompanied them to the hospital. After examining his brother

Sudhir, doctor declared him as brought dead. Police also reached in

the hospital from Police Station Nangloi and his statement was

recorded. The post mortem of the dead body of his brother was got

conducted and after post mortem, dead body was handed over to them.

IO lifted blood, one hawai chappal from the spot. He also handed over

his blood stained shirt which he was wearing at the time of the incident

and lifted his brother from the spot. In his cross-examination, he

reiterated his above stand and denied the suggestion that there were

many complaints against his brother in the locality and also denied that

his brother was a habitual drunkard and a gambler or used to gamble.

15. Sarla (PW-2) has stated that her husband Rajbir Singh had

expired about 10/11 years. After death of her husband, her brother

Suresh started residing with her to help her at her house. After that,

Suresh left her house and 7-8 years prior to the incident, her another

brother Sudhir started residing with her at their house. On 12.10.2006,

her brother Suresh had come to their house and she along with her

brother Suresh were sitting in the courtyard of their house. At about

10.00 p.m. appellant Pappu to whom she had given few money (thode

se) again stated that she had given Rs.2 lakhs to the appellant Pappu

two and half years prior to the incident came to her house and asked

her to receive from him the said amount after visiting his house and

after that he left her house. After 2-3 minutes when Pappu left her

house, her brother Sudhir came to her house from outside and she told

the fact of collecting money from the appellant Pappu to her brother

Sudhir and asked him to collect by visiting the house of appellant

Pappu. Her brother Sudhir left the house to collect money. After

about 4-5 minutes, she heard the noise „maro sale ko, jada paise wala

banta hai‟ in the gali near her house. She again heard the crises of her

brother Sudhir „bachao-bachao‟. After that, she along with her brother

Suresh left their house towards the gali from which they heard the

noise. Her brother was ahead of her. There was a light in the gali as

the light of their house was towards gali. She saw appellant Ranbir,

Daulat and Mukesh were beating her brother Sudhir with legs and fists

blows. Pappu had caught hold the neck of her brother Sudhir at that

time and was exhorting „maro sale ko‟. After that appellant Ashu @

Ravi son of appellant Pappu also reached there and he gave a lathi

blow on the head, by the side of right ear, shoulder and other part of

the body of her brother Sudhir. All the appellants/accused persons

were also giving legs and fists blows to her brother. After that, they

opened the gate of their house and in the mean time appellant Ashu

gave 4-5 lathi blows to her brother Sudhir and the appellant Pappu

again caught hold the neck of her brother. When they reached there,

all the four appellants pressed the neck of her brother Sudhir with the

help of danda jointly. After that, they intervened but all the appellants

escaped from the spot leaving danda at the spot. Her brother Sudhir

became unconscious at the spot. In the mean time, Manish and Sunil

arrived there and brought one Maruti car of Chand Ram at the spot.

Sudhir was taken to the Sonia Hospital in the said car. Her brother

Suresh took the deceased to the hospital. She came to know about the

death of the deceased Sudhir next day as she remained at her house. In

her cross-examination, she reiterated her stand and stated that she is

not engaged in the business of money lending but had given money to

the appellant Pappu. She denied the suggestion that the deceased was

in a drunk state at that time and also denied that he received injuries in

the scuffle that took place at the time when he was gambling with other

persons. She also denied the suggestion that her brother molested wife

of Vijay and that appellant Ranbir and his son and the other members

of the locality had objected to this behaviour.

16. Insofar as the question of credit worthiness of the evidence of

relative of victim is concerned, it is well settled that though the Court

has to scrutinize such evidence with great care and caution but such

evidence cannot be discarded on the sole ground of their interest in the

prosecution. The relationship per se does not affect the credibility of a

witness. Merely because the witness happens to be a relative of the

victim of the crime, he/she cannot be characterized as an interested

witness. It is trite that the term „interested‟ postulates that the person

concerned have some direct or indirect interest in seeing that the

appellant/accused is somehow or the other connected either because he

had some animosity with the accused or for some other motive. It is

more often than not a relation would not conceal the actual culprit and

make allegations against an innocent person. The Supreme Court in

Namdeo vs. State of Maharashtra, (2007) 14 SCC 150 observed as

follows :-

"37. Recently, in Harbans Kaur v. State of Haryana [(2005) 9 SCC 195 : 2005 SCC (Cri) 1213] the conviction of the accused was challenged in this Court, inter alia, on the ground that the prosecution version was based on testimony of relatives and hence it did not inspire confidence. Negativing the contention this Court said: (SCC p. 198, para 7)

"7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused."

38. From the above case law, it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."

17. Also in Dalip Singh & Ors. Vs. The State of Punjab, AIR

1953 SC 364, it was held by the Hon‟ble Supreme Court as :-

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

18. In the present case, no reasons are brought forth by the

appellants to question the veracity of these witnesses. Nothing

material has been put forth by the appellants to show that these

witnesses are trying to falsely implicate them out of some personal

grudge or animosity. Further the allegations with regard to the fight

due to pigs and the conduct of the deceased with women, these too are

not proved by means of evidences or witnesses.

19. No infirmity, otherwise also can be imputed on the testimonies

of PW-1 and PW-2 for the mere fact that they did not make all the

efforts to stop the appellants from hitting their brother when they could

have done so by reaching the place of incident within one minute when

the entire incident lasted for about 5-7 minutes or PW-2 not

accompanying the deceased to the hospital. The Court does not expect

a standard code of conduct from all the witnesses, i.e., to act and

behave in a particular manner. Human being react differently to

different situation. To a same incident, different degree of emotion

such as surprise, excitement, fear, annoyance etc. is exhibited by the

various witnesses and no particular degree or standard can be laid

down by any Court in which form and manner it expects the witnesses

to behave and react to a particular situation. This Court cannot further

penalise or discard what is stated by a witness for a fact that he has

failed to act and behave to a situation in a manner what the general

public expects out of him. In the present case, simply a failure of

PW-1 and PW-2 to conduct in a manner as aforementioned would not

be sufficient to belie their otherwise cogent testimonies. We observe

that both these witnesses had stated in their testimonies that when they

reached at the spot and tried to intervene all the accused/appellants had

run away. Further Sunil Kumar Vats (PW-5) has stated that Sarla

(PW-2) had not gone to the hospital as she was not feeling well after

the incident.

20. It was held by the Supreme Court in Rana Pratap vs. State of

Haryana, (1983) 3 SCC 327:-

"6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

21. It was then contended that there are certain discrepancies and

contradictions in the statements of prosecution witnesses in regard to

the recording of statement of Suresh (PW-1) and also that it was not

possible for Sarla (PW-2) to see the incident from behind the close

door of her house. However, in this regard, we observe that these

variations are not material in nature. Further, PW-2 has stated in her

cross-examination that at the time when accused persons/appellants

were pressing danda on the throat of the deceased, she was opening her

grill gate. Thus, it could be possible for her to see the incident from

there. Undoubtedly, some minor discrepancies or variations are

traceable in the statement of these witnesses. But what the Court has

to see is whether these variations are material and affect the case of the

prosecution substantially. However, variation may not be enough to

adversely affect the case of prosecution. It is a settled principle of law

that the Court should examine the statement of the witness in its

entirety and read the said statement along with the statement of other

witnesses in order to arrive at a rational conclusion. No statement of a

witness can be read in part and/or in isolation. We are unable to see

any material or serious contradiction in the statements of these

witnesses which may give any advantage to the appellants.

22. The prosecution case not only stands proved from the

testimonies of the aforesaid witnesses who saw all the appellants

involved in the incident rather also from the statement of Sunil Kumar

Vats (PW-5) who has stated in his testimony that on 12.10.2006 at

about 10.00 p.m., he was present at his house. He heard the noise of

quarrel in the gali near his house and he came outside from his house

and when he was present in the gali, he found one Manish who was

residing in his neighbourhood. He also found Sudhir present in the gali

opposite to the house of the neighbour in injured condition and later on

stated, opposite to the shop of Sudhir which is situated in the house of

his sister Sarla. When he went near Sudhir, he found two

accused/appellants Daulat and Mukesh running towards Phirni Road

from the gali on a motor cycle and saw the appellant Ashu running

towards village with his father Pappu. Then he went to fetch the

Maruti van of his friend and removed Sudhir to Sonia Hospital in the

van and Suresh was with him in the van and Manish followed them on

the motor cycle. Thus, as per Sunil Kumar Vats (PW-5) also, he saw

all the appellants fleeing away from the spot, though, he had not

witnessed the incident. It is also clear from his testimony that Suresh

accompanied Sunil Kumar and Manish along with the injured to the

hospital and in such a case, the factum of mere absence of the name of

Suresh (PW-1) from the MLC report Ex.PW3/A cannot be taken

adverse to the prosecution case.

23. So far as non mention of name of the appellants in MLC is

concerned, it may be mentioned that there is no rule of law that MLC

must contain the name of the accused. The primary duty of the doctor

is to treat the patient and not to find out who had caused the injuries.

24. As regards, the absence of motive in the present case, we

observe that it is a settled legal proposition that even if the absence of

motive as alleged is accepted that is of no consequence and pales into

insignificance when direct evidence establishes the crime.

Therefore, in case there is direct trustworthy evidence of witnesses

as to commission of an alleged offence, the motive part loses its

significance. Therefore, if the genesis of the motive of the

occurrence is not proved, the ocular testimony of the witnesses as

to the occurrence could not be discarded only by the reason of the

absence of motive, if otherwise the evidence is worthy of reliance.

In this regard, reliance can be placed upon judgments in Hari

Shankar vs. State of U.P., (1996) 9 SCC 40, Bikau Pandey &

Ors. vs. State of Bihar, (2003) 12 SCC 616 and Abu Thakir &

Ors. vs. State of Tamil Nadu, (2010) 5 SCC 91.

25. In the instant case, as we have already observed that the

testimonies of PW-1 and PW-2 are corroborated with each other

and nothing material has emerged from their cross-examination.

Presence of the appellants on the spot is proved from the

testimony of Sunil Kumar Vats (PW-5). Hence in the light of the

above observations, mere absence of motive is not sufficient to

discard the testimony of these witnesses.

26. Otherwise also, it is observed that the deceased had gone to

take the money from appellant Ranbir @ Pappu which he owed to

Sarla (PW-2) in the process of which he was caught by the

appellants and given various injuries as a result of which he died.

At this juncture, it is also pertinent to observe that although the

exact loan amount has not been stated by Sarla and various

discrepancies exist regarding it. Also, Sarla (PW-2) has not been

able to prove the source of the said loan amount. However, in this

regard we observe that it was not required to be so done as the

case before us is a criminal prosecution and not a civil suit for

recovery in which the exact amount of loan is required to be

proved. Sarla (PW-2) has stated that she had lend money to the

appellant Pappu and so also Suresh (PW-1) has stated that on the

day of incident, the said appellant had come to the house of Sarla

(PW-2) asking her to take the said amount back from him.

Further, Sachin Lakra (PW-18) has also stated in his testimony

that he took his aunt Sarla to SBI Mundka for withdrawal of cash

amount. His said aunt withdrew Rupees One lakh from the bank.

In the evening, his aunt had handed over Rs.1,40,000/- to Ranbir

@ Pappu. The said amount was given in the year 2004. The

appellant Pappu had borrowed the said amount from his aunt but

he does not know for what purpose the said amount was given to

him.

27. We cannot forget that it is generally a difficult area for

prosecution to bring on record as to what was in the mind of the

accused/appellant and why he chose to act in a particular manner

because it is not easy to read the human nature being what it is.

The man‟s passion may arouse at any time on some very trifling

issue. The motive of a man is often so deep seated as to be almost

unfathomable. Only he is having the knowledge of the feelings which

he may be having against a particular person. On the other hand there

are persons who are so indolent and tolerant that they do not react even

on much more serious incidents. Man's behaviour and reaction differ

from person to person and by no scale is measurable. In today‟s time

when patience run low and anger is aroused over a very trifling matter,

it cannot be said with utmost certainty that a simple act such as asking

for the money could not have been sufficient enough to form a motive

for commission of an offence. However, as we have already observed

that motive rests deep within the mind of the accused and is

unfathomable and cannot be determined with utmost certainty. The

fact of the matter still remains to be that motive loses its significance

when direct evidence of the incident exists.

28. Lastly, it is observed from the testimonies of the eye-witnesses

that all the appellants were involved in giving various injuries to the

deceased as a result of which he died. Suresh (PW-1) has stated that he

saw the appellant Ranbir @ Pappu holding his brother from neck and

appellant Mukesh and Daulat were giving leg and fist blows to him.

Immediately appellant Ashu also ran there and he has a danda in his

hand using which he gave 2-3 blows on the head of his brother Sudhir.

After that all the four appellants/accused persons pressed the neck of

his brother with danda using force. To similar effect, it was stated by

PW-2 in her testimony that Ranbir, Daulat and Mukesh were beating

her brother with leg and fist blows. Pappu had caught hold the neck of

her brother Sudhir and was exhorting „maro sale ko‟. After that

appellant Ashu @ Ravi, son of appellant Ranbir @ Pappu also reached

there and gave a lathi blow on the head, by the side of right ear,

shoulder and other part of body of Sudhir. All the appellants were also

giving leg and fist blows to Sudhir. Appellant Ashu gave 4-5 lathi

blows to her brother and Pappu again caught hold of Sudhir‟s neck.

When they reached there, all the four appellants pressed the neck of her

brother with the help of danda jointly.

29. In the post mortem report of the deceased Sudhir which is

Ex.PW20/A, the following injuries were shown to be found on the

person of the deceased:-

"1. Bruising on left shoulder on its outer aspect of size 3 cms x 2 cms.

2. Bruising of lower lip

3. Lacerated wound just below chin 3 cms x .5 cm x muscle deep

4. Multiple bruises on front of neck of size varying from 3 cms x 2 cms to 2 cms x 2 cms.

5. Lacerated wound on right termporal region 3 cms x 2 cms x Scalp deep

On internal examination, there was sub-scalp haemotoma on right temporo-parietal region. There was generalized subdural haemotoma and subarachnoid haemorrhage on tempo-parietal region; on internal examination of neck, there was bruising of neck tissue on front."

30. Further, as per Dr.V.K. Jha (PW-20), the cause of death was

opined as comma as a result of head injury consequent to blunt force

diverted upon head by other party and the head injury was sufficient to

cause death in ordinary course of nature. He has also deposed that on

17.11.2006, an application seeking opinion regarding weapon of

offence was moved. On opening the sealed parcel, he found a bamboo

stick, the length of the stick was 3 feet 2 inch, one inch thicker and

tapper in other end and contained vide thick stain on its surface. After

examination, he opined that injury over head and neck mentioned in

Ex.PW20/A could have been produced by the said weapon or similar

such weapon. He has proved his subsequent opinion as Ex.PW20/B.

31. In the case of Section 34 IPC, it is well established that the

common intention pre-supposes prior concert. It requires a prearranged

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. However, the plan may not be

elaborate, nor is a long interval of the time required. It could arise in a

spur of moment. But as it is difficult to prove the intention of an

individual, it has to be inferred from his act or conduct and other

related circumstances. Also, as it was observed by the Supreme Court

in State of U.P. vs. Iftikhar Khan, (1973) 1 SCC 512 that it is not

necessary to attract the section that any overt act must be done by the

particular accused. It is enough if it is established that the criminal act

has been done by anyone of the accused in furtherance of the common

intention. The Supreme Court in Suresh and Anr. Vs. State of U.P.,

(2001) 3 SCC 673 has held:-

"38. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.

39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act". The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.

40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section

34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor [AIR 1919 Pat 111 : 20 Cri LJ 289] held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."

32. In the present case, the factum of all the appellants sharing a

common intention to cause death of the deceased is clearly established

from the testimonies of Suresh (PW-1) and Sarla (PW-2) who have

stated that all the appellants have participated equally in giving leg and

fist blows and pressing the neck of the deceased with danda, the

number and type of injuries and the sufficiency of the injury inflicted

on the head with a blunt object to cause death in ordinary course of

nature, too, stands established from the post mortem report

Ex.PW20/A. Further, as per judgment in Suresh and Anr. (supra),

the appellants are constructively made liable for the „criminal act‟ even

though they may not have actually committed that act. The judgments

relied by the appellants do not aid their case. Even the reliance on

Naresh Kumar's case (supra) by the appellant is misconceived as that

was a case where the appellants had caught hold the hands of the

deceased and pushed him against the wall and the main accused had

stabbed the deceased on the chest and in the light of the same, this

Court had held that the fatal injury could not have been caused within

the comprehension of the appellants. Whereas in the present case, we

have already observed that all the appellants have equally participated

and the common intention to cause death by all was clearly manifest

from their conduct of holding the deceased, giving him leg and fist

blows and appellant Ravi @ Ashu hitting him with danda on his head

and later on all of them pressing his neck with the said danda.

33. Placing reliance on Ankush Shivaji Gaikwad vs. State of

Maharashtra, (2013) 6 SCC 770, Pal Singh & Ors. Vs. State, Crl.

Appeal No.195/2001 and Chenda vs. State of Chattisgarh, Crl.

Appeal No.1285/2013, learned counsel for the appellants sought the

benefit of Exception IV to Section 300 IPC. However, it is settled law

that to claim the benefit of the said Exception, the onus is on the person

who claims the benefit to prove that the occurrence had happened in a

sudden quarrel and without any pre-meditation. In the present case, the

appellants have failed to discharge this onus to claim the benefit under

the said Exception and hence they are not entitled to any such benefit.

34. In the light of the aforesaid discussion, the appeals are devoid of

any merit and are hereby dismissed. The judgment dated 30 th August,

2012 is upheld. We also affirm the order on sentence dated 27 th

November, 2012.

35. The appellants are in judicial custody, a copy of this judgment

be delivered to the appellants through concerned Superintendent Jail.

(VED PRAKASH VAISH) JUDGE

(P.K. BHASIN) JUDGE November 22, 2013 gm