Delhi High Court
Sri Narain And Anr. vs State (Govt. Of Nct Of Delhi) on 30 January, 2014
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21st January, 2014
Pronounced on: 30th January, 2014
+ CRL. A. 542/1998
SRI NARAIN AND ANR. ..... Appellants
Through Mr. Dinesh Chander Yadav,
Advocate
versus
STATE (GOVT. OF NCT OF DELHI) .... Respondent
Through Mr. Rajat Katyal, APP for the State
with SI Premveer Singh, PS Sultan
Puri.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G.P. MITTAL, J.
1. This appeal relates to a small dispute with very serious and painful
consequences wherein a mother (Sunderi Devi) lost one of her sons
(Hari Prakash) whereas the other (Sri Narain) and his wife (Smt.
Savita) were sentenced to imprisonment for life for committing
murder of deceased Hari Prakash.
2. FIR No.512/1992 on the basis of which the appellants faced trial
for the offence punishable under Section 302 read with Section 34
of the Indian Penal Code, 1860 (IPC) in Sessions Case No. 146 of
1996 was registered on the statement of deceased Hari Prakash,
which the Trial Court (the Additional Sessions Judge) treated as a
dying declaration. Believing the same to be true and voluntary, the
ASJ relied on the same and held that the appellants shared a
common intention to commit the murder of the deceased with one
Late Surat Singh @ Bunty who was the brother of appellant Savita.
3. The English translation of the complaint Ex.PW2/B made by
deceased Hari Prakash to SI Balbir Singh is extracted hereunder:-
"I stay at the above mentioned address. I had got my
younger brother Sri Narain married around 1 ½ years
ago at Rewari. This house has 2 rooms; in one of the
rooms my younger brother Sri Narain resides with his
wife Savita while I and my mother stay on the roof and
the room on the ground floor has been given on rent. My
brother Sri Narain and his wife Savita insisted that we
should get the ground floor room vacated and stay in the
same to which I replied that we shall get it vacated and
stay there after I get married. On this topic only, Sri
Narain's brother-in-law Surat Singh @ Bunty and his
sister used to quarrel with my mother. They also fought
on 24.10.1992. On 03.11.1992, at about 08:10 p.m., the
dispute was again raised. My younger brother Sri Narain
caught hold of me and his wife Savita gave me slaps and
fist blows. Surat Singh @ Bunty, S/o Dutt Ram, R/o Bus
Stand, Jhuggi took out a knife and stabbed in my
abdomen and on my shoulder with an intention to kill me.
Because Bunty was already in search of an opportunity
to kill me and that is why he had stabbed me with a knife
with an intention to kill me. My brother Sri Narain and
his wife Savita had caught hold of me. They had already
made a plan to take my life. Jagannath and others came
to save me and my mother took me to DDU hospital.
Please take legal action against them."
4. It is apparent from the MLC as also from the endorsement Ex.PW-
2/C made by SI Balbir Singh on the statement Ex.PW-2/B made by
deceased Hari Prakash that immediately after the incident, the
deceased was removed to Deen Dayal Upadhyay (DDU) Hospital.
SI Balbir Singh obtained the fitness certificate from the doctor to
record the statement of the deceased.
5. In order to establish it's case, the prosecution has examined 18
witnesses. Sundari Devi, the deceased's mother who was also a
witness to the occurrence died during the course of trial before her
statement could be recorded. Thus, the prosecution was left to
examine Jagan Nath, the solitary eye witness of the incident.
However, he did not support the prosecution version that he was a
witness to the occurrence. He deposed that on the day of the
incident, when he returned from his duty, he came to know that a
quarrel had taken place. He removed the injured Hari Prakash (now
deceased) to the hospital. He was permitted to be cross-examined
by the learned Additional Public Prosecutor for the State but he
stuck to his version and denied that he saw appellants Sri Narain
and Savita catching hold of Hari Prakash and the third accused
Surat Singh @ Bunty (since deceased) inflicting knife blows on the
abdomen, shoulder and face of the deceased. Other witnesses
examined by the prosecution have provided various links in the
case of the prosecution to establish that the incident of stabbing
took place at D-2/337, Sultan Puri, Delhi. Hari Prakash is stated to
have succumbed to the injuries on 17.11.1992 (14 days after the
incident). Dr. L.T.Ramani opined that the injury to abdominal
viscera was sufficient to cause death in the ordinary course of
nature. He stated that death was due to shock peritonitis following
injury to the abdominal viscera.
6. In their examination under Section 313 of the Code of Criminal
Procedure, 1973 (Cr.P.C.), the appellants have simply denied the
incident. They have not given any account or any explanation as to
how the incident actually occurred.
7. As stated earlier, the ASJ relied on the statement Ex.PW-2/B made
by injured Hari Prakash (the deceased) treating it as a dying
declaration. He repelled the contention raised on behalf of the
appellants that the dying declaration recorded by the police officer
ought not be believed as there was an opportunity to call the
Magistrate, holding that Hari Prakash's death was not anticipated
by PW-2 and therefore it was not a case where there was an
opportunity to summon a Magistrate to record the dying
declaration. Consequently, the appellants were convicted holding
them constructively liable for the act of their deceased co-accused
Surat Singh @ Bunty with the aid of Section 34 IPC.
8. There is twin challenge to the impugned judgment laid by the
learned counsel for the appellants. First, since the deceased was not
under expectation of death, statement Ex.PW-2/B could not have
been taken as a dying declaration and second, there was no
evidence to show that there was any pre-concert or prior meeting of
minds or a pre-arranged plan to cause fatal injury on the person of
the deceased between the appellants and the co-accused Surat
Singh @ Bunty (since deceased). Therefore, they could not have
been convicted under Section 302 with the aid of Section 34 IPC.
9. Coming to the first question, having recourse to Section 32 of the
Indian Evidence Act, 1872 (the Act) we may say that it is not the
requirement of law that the person making the statement must be
under expectation of death. The relevant portion of Section 32 of
the Act is extracted hereunder:-
"32. Cases in which statement of relevant fact by person
who is dead or cannot be found, etc., is relevant.-
Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose
attendance cannot be procured without an amount of
delay or expense which under the circumstances of the
case, appears to the Court unreasonable, are themselves
relevant facts in the following cases:-
(1) When it relates to cause of death.- When the
statement is made by a person as to the cause of his
death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which
the cause of that person' s death comes into question.
Such statements are relevant whether the person who
made them was or was not, at the time when they were
made, under expectation of death, and whatever may be
the nature of the proceeding in which the cause of his
death comes into question. (emphasis supplied)
(2) .......................
(3) .......................
(4) .......................
(4) .......................
(5) .......................
(6) .......................
(7) .......................
(8) ......................."
10. Thus, a bare perusal of the provisions of Section 32 of the Act
discloses that for considering the circumstances of the transaction
which resulted in a death, the statement made by the deceased
person need not be made while he is under expectation of death.
11. In State of Haryana v. Mange Ram & Ors., (2003) 1 SCC 637, the
Supreme Court highlighted the distinction on this aspect under the
English Law and the Indian Law and held that the expectation of
imminent death is not the requirement of Indian law and while
reversing the judgment of acquittal held thus:-
"11. The main reason for discarding Exhibit PQ is that
when the statement was recorded by the police, the
deceased was not under the shadow of death and the
injuries received by him were not even considered
dangerous to his life. The other reason given is delay in
recording Exhibit PQ with the result that there was
ample intervening time for deliberation and false
implication of the accused on account of previous enmity
as also the non-examination of Sant Ram by the
prosecution and introduction of PW 5 as a false witness
in the dying declaration. The basic infirmity committed
by the High Court is in assuming that for a dying
declaration to be admissible in evidence, it is necessary
that the maker of the statement, at the time of making the
statement, should be under the shadow of death. That is
not what Section 32 of the Indian Evidence Act says. That
is not the law in India. Under the Indian law, for dying
declaration to be admissible in evidence, it is not
necessary that the maker of the statement at the time of
making the statement should be under the shadow of
death and should entertain the belief that his death was
imminent. The expectation of imminent death is not the
requirement of law..............."
12. The first contention raised is therefore bound to be rejected.
13. Coming to the second contention we may say that before the Court
can convict a person constructively for the act of another, it must
satisfy itself of the existence of a prior concert between them or a
pre-arranged plan. It is true that the common intention could arise
at the spur of moment and be formed suddenly even at the spot,
however, there has to be positive evidence of the same.
Particularly, where a fatal blow is given by one person and the
others who are present at the spot are unarmed, there has to be
some positive evidence to draw an inference of common intention.
14. In Laxmanji & Anr. v. State of Gujarat, (2008) 17 SCC 48 relying
on Jai Bhagwan v. State of Haryana, (1999) 3 SCC 102, the
Supreme Court held thus:-
"11. ........... In order to bring a case under Section 34 it
is not necessary that there must be a prior conspiracy or
premeditation. The common intention can be formed in
the course of occurrence. To apply Section 34 apart from
the fact that there should be two or more accused, two
factors must be established: (i) common intention, and
(ii) participation of the accused in the commission of an
offence. If common intention is proved but no overt act is
attributed to the individual accused, Section 34 will be
attracted as essentially it involves vicarious liability. But
if participation of the accused in the crime is proved and
common intention is absent, Section 34 cannot be
invoked....."
15. Since it is difficult to get direct evidence of the fact that any act
done by the accused persons at the spot is in furtherance of the
common intention of all or of some of them present at the scene of
crime, the inference of common intention has necessarily to be
drawn from the circumstances established by the prosecution. In
Brijlala Pd. Sinha v. State of Bihar, (1998) 5 SCC 699, the
Supreme Court ruled that unless a common intention is established
as a matter of necessary inference from the proved circumstances,
the accused persons will be liable for their individual acts and not
for the acts done by any other person. In para 11 of the report, the
Supreme Court held as under:
"11. .....Unless a common intention is established as a
matter of necessary inference from the proved
circumstances the accused persons will be liable for their
individual act and not for the act done by any other
person. For an inference of common intention to be
drawn for the purposes of Section 34, the evidence and
the circumstances of the case should establish, without
any room for doubt, that a meeting of minds and a fusion
of ideas had taken place amongst the different accused
and in prosecution of it, the overt acts of the accused
persons flowed out as if in obedience to the command of
a single mind. If on the evidence, there is doubt as to the
involvement of a particular accused in the common
intention, the benefit of doubt should be given to the said
accused person...."
16. In Dharam Pal and Ors. v. State of Haryana, AIR 1978 SC 1492,
the Supreme Court observed as under:
"15. A criminal court fastening vicarious liability must
satisfy itself as to the prior meeting of the minds of the
principal culprit and his companions who are sought to
be constructively made liable in respect of every act
committed by the former. There is no law to our
knowledge which lays down that a person accompanying
the principal culprit shares his intention in respect of
every act which the latter might eventually commit. The
existence or otherwise of the common intention depends
upon the facts and circumstances of each case...."
17. In Salim @ Naju v. State, Criminal Appeal No.976/2012, decided
by a Division Bench of this Court on 20.09.2013 to which one of
us (G.P. Mittal, J.) was a party, the juvenile and the two appellants
asked for the mobile phone from the deceased and the deceased
refused to hand over the same to the accused persons. Immediately
thereafter the co-accused, that is, the juvenile attacked the deceased
with a knife which he took out. What provoked the juvenile to
attack the deceased with the knife could not be deciphered. The
Division Bench held that although it was difficult to accept the
contention raised on behalf of the State that the three accused
wanted to rob the deceased of the mobile phone, yet even if it was
assumed that the three boys wanted to commit the robbery, there
was no evidence to show common intention to cause injury on the
vital part of the body of the deceased was shared by the two
appellants.
18. In Surender Kumar @ Dimpy & Ors. v. State, Criminal Appeal
No.702/2001, decided by a Division Bench of this Court on
19.11.2009, the facts were that the appellant Surender used to tease
Usha, a neighbour. Usha made a complaint about the same to her
father, two brothers and mother. All four had an altercation with
appellant Surender. Surender's parents reached the spot. When the
verbal dual was going on between Surender on the one hand and
Rajesh, Naresh and Kishal Lal (the deceased) on the other hand,
accused Ramesh Chand took Usha's brother Kishan Lal in a bear
hug from behind and Surender gave him a knife blow. On facts, it
was found that there was no evidence that the co-accused, that is,
appellants Ramesh Chand and Ved Rani were aware of Surender
carrying a knife. The Division Bench held that the co-accused
Ramesh Chand and Ved Rani cannot be said to have shared
common intention to inflict a knife injury on the chest of the
deceased by Surender. Para 50 of the report in Surender Kumar @
Dimpy is extracted hereunder:-
"50. That apart, on the issue of common intention shared
by the accused, it has to be noted that the starting point
of the episode was Surender being the antagonist on the
street who teased Usha who went home and complained
leading to the deceased, her two brothers and her mother
going to the street to settle scores with Surender, who
still remained the sole antagonist on the street. His
parents joined the scene at stage two when at stage one a
verbal duel was going on between Surender on the one
hand and the deceased, Rajesh, Naresh and Krishna on
the other hand. What did they know about the deceased
(sic Surender) carrying a knife with him? There is no
evidence that they knew. Even if they caught hold of the
deceased it cannot be said that they did so sharing any
common intention to murder the deceased or the common
intention to inflict a knife injury on the chest of the
deceased by Surender."
19. In State v. Sunil @ Akash @ Sagar, Criminal L.P. 527/2011,
decided on 23.01.2012 by another Division Bench of this Court,
Respondent Sunil held the deceased's hands from the back and co-
accused Vipin inflicted knife injuries on deceased's (Suraj) chest
and then both the accused fled from the spot. In the absence of any
knowledge that Vipin was armed with a knife and was bound to
use it, the Division Bench opined that Sunil was rightly acquitted
of the offence of murder with the aid of Section 34 IPC.
20. In Kashmira Singh v. State of Punjab, 1995 Supp (4) SCC 558,
appellant Kashmira Singh was tried along with two others William
and Sukhchain Singh for the offence under Section 302 read with
Section 34 IPC. The three were alleged to be pick pocketers. As
per the prosecution, on 30.05.1979, deceased Sukhbinder Singh
and his brother PW-4 and uncle PW-5 had gone to Amritsar to get
the tractor repaired. It was alleged that the appellant (Kashmira
Singh) tried to put his hands in the shirt pocket of PW-5 who
questioned him as to what was he doing. Thereupon, PW-5 called
the deceased and the deceased tried to catch hold of the appellant.
But in the process, the appellant and his co-accused Sukhcahin
Singh caught hold of the deceased and William who happened to
be there took out a knife from his pant pocket and gave a blow to
the deceased on his neck. The deceased fell down and the trio ran
away. The Supreme Court held that the appellants (Kashmira Singh
as well as Sukhchain Singh) could not be said to have shared
common intention with the co-accused William to cause injury
with the knife on the vital part of the body. Allowing the appeal,
the appellant Kashmira Singh and Sukhchain Singh, (who had not
even preferred the appeal), were acquitted.
21. Coming to the facts of the instant case, it has to be borne in mind
that it was the statement Ex.PW-2/B, being dying declaration,
made by the deceased to the police, which formed the basis of the
appellants' conviction under Section 302 IPC with the aid of
Section 34 IPC. The statement is completely silent that the
appellants had exhorted Surat Singh @ Bunty to kill or to stab the
deceased. The statement does not even show that the appellants
were aware of co-accused Surat Singh @ Bunty carrying a knife
with him. The statement reveals that when the deceased was held
by appellant Sri Narain, he was given slaps and fist blows by
appellant Savita. It was at this point of time that Surat Singh @
Bunty suddenly took out a knife and stabbed in the deceased's
abdomen. Although, we affirm the view taken by the learned ASJ
that there was no reason to disbelieve the statement Ex.PW-2/B
made by the deceased to SI Balbir Singh when he was fully
conscious and had no motive to falsely implicate anyone, yet there
is absolutely no material to show that the appellants Sri Narain and
Savita shared the common intention to inflict the knife injury by
co-accused Surat Singh @ Bunty. It is not even stated that while
the injuries were being inflicted, appellant Sri Narain continued to
hold the deceased. Thus, the appellants' conviction under Section
302 read with Section 34 IPC cannot be sustained. The same is
liable to be set aside.
22. However, from the dying declaration Ex.PW-2/B the appellants are
clearly guilty of causing simple injuries with blunt object, that is,
slaps and fists blows in furtherance of their common intention.
They are, therefore, convicted for the offence punishable under
Section 323 read with Section 34 IPC and are sentenced to undergo
simple imprisonment for six months each, which they have already
undergone.
23. The appellants were enlarged on bail in pursuance of the orders
dated 13.01.1999 (Savita) and 03.04.2003 (Sri Narain) respectively
passed by this Court. Their personal bonds and surety bonds are
ordered to be discharged.
24. The appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
(SANJIV KHANNA)
JUDGE
JANUARY 30, 2014
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