Delhi High Court
Putul Kumar vs State Govt Of Nct Of Delhi on 12 July, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : July 12, 2016
1. + Crl. Appeal No. 1106/2012
PUTUL KUMAR ..... Appellant
Through: Mr. Sanjan K. Singh and Ms.
Sangeeta Singh, Advocates
versus
STATE GOVT OF NCT OF DELHI ..... Respondent
Through: Mr. Amit Chadha, Additional Public
Prosecutor for the State
2. + Crl. Appeal No. 1312/2012
PRAMOD KUMAR ALIAS NATU ..... Appellant
Through: Mr. Somer K. Sethi, Ms. Dolly
Sharma, Advocates (DHCLSC)
versus
STATE GOVT OF NCT OF DELHI ..... Respondent
Through: Mr. Amit Chadha, Additional Public
Prosecutor for the State
3. + Crl. Appeal No. 87/2013
VIPIN KUMAR ..... Appellant
Through: Mr. Kunal Aurora, Advocate for
Ms.Anu Narula, counsel for the
Appellant.
versus
STATE ..... Respondent
Through: Mr. Amit Chadha, Additional Public
Prosecutor for the State
Crl. A. No. 1106/2012, 1312/2012, 87/2013 & 1669/2013 Page 1 of 19
4. + Crl. Appeal No. 1669/2013, Crl. M.B. No. 647/2016 (Bail)
BRIJESH KUMAR ..... Appellant
Through: Mr. Sanjan K. Singh and Ms.
Sangeeta Singh, Advocates
versus
STATE ..... Respondent
Through: Mr. Amit Chadha, Additional Public
Prosecutor for the State
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT
P.S.TEJI, J.
1. By these four separate appeals filed under Section 374(2) of Cr.
P.C., the appellants seek to challenge the judgment dated 04.07.2012
as well as order on sentence dated 07.07.2012, passed by the learned
Additional Sessions Judge-II, North East, Rohini Courts, Delhi in
Sessions Case No.98/2011 (FIR No.312/2008 under Section
302/323/34 IPC, P.S. Shalimar Bagh).
2. Since the FIR as well as impugned order in all the four appeals
are the same, therefore, with the consent of the counsel appearing on
behalf of all the appellants, arguments in all the appeals are heard
together and all the appeals are disposed of by this common order.
3. In brief, the facts of the case are that on 05.06.2008 at about
11:45 PM DD No.41A was received at Police Station Shalimar Bagh
pursuant to which ASI Ram Darsh along with HC Rajesh reached
Ambedkar Hospital and collected the MLC of injured who was
unconscious and unfit for statement. Thereafter, ASI Ram Darsh and
HC Rajesh reached RBI Colony where they came to know that a
quarrel had taken place at CA Block Jhuggies but no eye witness was
found. Rukka was prepared on DD No.41A and the FIR of the present
case was got registered. On 08.06.2008 injured Yaswant Meena
expired during treatment at RML Hospital pursuant to which further
investigation of the case were handed over to Inspector Pooran Chand.
Thereafter, postmortem of the deceased was got conducted. On
08.06.2008 one Pradeep Kumar met the investigating officer who
informed him that the deceased Yashwant @ Jaswant Meena was his
close friend and on 05.06.2008 at about 7:30 - 8:00 PM they had gone
to Police Colony Shalimar Bagh on a motorcycle and while returning
at about 10:00 PM they reached the juice rehri of Natu whom they
knew previously since they used to take juice from him. Natu refused
to give them juice on which there accrued a verbal altercation between
Natu and Yashwant @ Jaswant. At that time one other person was
also standing at the juice rehri who ran towards the jhuggies and called
his other associates who also came to the spot duly armed with dandas
and wooden fatta. All the said persons thereafter started beating
Yashwant @ Jaswant Meena with the said dandas and wooden fatta
and also gave fist and leg blows to Yashwant @ Jaswant Meena.
Pradeep Kumar further informed the police that when he tried to
intervene, the said boys gave beatings to him too, pursuant to which he
too received injuries. Yashwant @ Jaswant Meena tried to run
towards the side of the road but one of the assailants chased him and
gave a blow on his head with the help of a wooden fatta due to which
Yashwant @ Jaswant fell down on which the other assailant also gave
beatings to him. The eye witness Pradeep Kumar also informed the
police that he himself escaped and ran towards the corner of RBI
Colony where he informed about the incident to one ice-cream seller
and requested him to shift Yashwant @ Jaswant Meena to his relatives
and also asked another boy to bring his motorcycle.
4. On the basis of the said statement of Pradeep Kumar
investigation commenced. On 09.06.2008 pursuant to a secret
information, the accused Brijesh Kumar was apprehended and
arrested. Thereafter, on the pointing out of accused Brijesh Kumar,
the other accused namely Subhash Kumar, Putul Kumar and Vipin
Kumar were arrested. Pursuant to their disclosure statements, accused
Subhash and Brijesh got recovered the danda and a fatta used in the
commission of offence from the bushes near the nehar. On
13.06.2008 the Test Identification Parade of all the four accused were
conducted in which they refused to participate. Thereafter, efforts
were made to trace the accused Pramod @ Natu and process under
Section 82/83 Cr.P.C. were issued against him and on 29.08.2008 the
accused Pramod @ Natu surrendered before learned MM after which
the accused was arrested. Pursuant to his disclosure statement the
accused Pramod @ Natu got recovered the wooden Musli used in the
juice machine with which he had inflicted injuries upon Yashwant @
Jaswant Meena. After completion of investigation, charge sheet was
filed against all the accused persons before the Court.
5. Mr. Somer K. Sethi, learned counsel for the appellant-Pramod
Kumar @ Natu urges that the Trial Court has relied heavily upon PW-
7 Pradeep Kumar an alleged eyewitness who resurfaced only on
08.06.2008, without giving any valid explanation of his whereabouts
for 3 days. Therefore, the conduct of the witness was unnatural and
not keeping with normal human conduct. As regards PW-8 Smt.
Angoori Devi mother of deceased, it is contended that she did not tell
the police at the earliest point of time that her deceased son had last
gone with PW-7 Pradeep Kumar on his motorcycle.
6. It is further contended that the recovery of musli is shrouded in
mystery as it was recovered after 2 months of the occurrence from the
hut of the appellant. Anyhow, the recovery of musli in no way
connects the appellant to the crime as it was not blood stained. It is
further contended that the police never knew the name of the appellant
and even if it is assumed that the police knew the name of the
appellant, then the search of the appellant should have been done
forthwith whereas they claim to the contrary.
7. Learned counsel for the appellant - Pramod Kumar @ Natu
further contended that appellant was not related to or connected to the
other convicts of this case. It is also submitted that the Trial Court
overlooked the fact that the deceased was the aggressor and even as
per the alleged prosecution story, it was co-accused - Brijesh Kumar
who chased the deceased and gave a fatal blow on his head due to
which he fell on the ground.
8. Lastly, it is contended that the sentence imposed upon the
appellant is on the harsher side, which is prayed to be reduced.
9. Mr. Sajan K. Singh, learned counsel for the appellants-Putul
Kumar and Brijesh Kumar urged that the appellants have been
convicted primarily on the testimony of PW-7, whose deposition could
not at all be considered as worthy for the conviction of the appellants.
Application is disposed of with direction to file requisite certified
copies and annexure within four weeks. It is further contended that the
version of the eye witness cannot be considered a paramount ground
for the conviction of any of the accused. It is further submitted that
the evidence of PW-7 being the eye witness cannot be considered to
be trustworthy, as according to him he was present at the place of
occurrence along with the deceased and saw the deceased being beaten
up not only by the fist and leg but also by the wooden danda and fatta
but in spite of PW-7 being a close friend of deceased, he left his
injured friend at the mercy of an ice cream vendor and did not bother
to inform his family member. Moreover, PW-7 visited the Hospital to
see his injured friend but on that day also he did not inform the police
about his presence at the place of occurrence and he only informed
after coming to know about the demise of Yashwant @ Jaswant
Meena. It is further contended that the Trial Court wrongly held the
testimony of PW-7 reliable and worthy for the purpose of conviction
of the appellants. However, even if the version of prosecution were to
be believed, it was only the PW-7 who had seen the appellants, giving
leg and fist blows.
10. As far as weapon of offence, i.e. wooden musli, wooden danda
and fatta are concerned, learned counsel for the appellants contended
that the same were neither recovered from the possession of appellants
nor were they recovered at their instance. Therefore, it cannot be held
that the appellants were involved in the incident, which caused the
death of Yaswant Meena. It is further contended that it has not been
proved by the prosecution that whether the appellants were
responsible in giving direct injury to Yaswant Meena which caused his
death. Even the medical evidence does not specifically indicate the
role of the appellants.
11. As per case of prosecution, PW-18 was the person who was
present at the spot at the relevant time and one of the important
witnesses to prove the guilt of the accused but ultimately, PW-18 was
declared as hostile witness as in his deposition, he completely
retracted from his own statement by giving the reason that police
under compelling circumstances had forcefully obtained his statement.
It is submitted that despite the aforesaid position, the Trial Court held
the appellants guilty on the ground that even the statement of a hostile
witness that finds corroboration, can be read into evidence.
Surprisingly the Trial Court found corroboration in the testimony of
PW-18 in spite of the fact that he showed his ignorance about the
alleged incident. In support of his contentions, learned counsel for the
appellants has relied on the following judgments: -
a) Richhpal Singh Meena v. Ghasi alias Ghisa and
others, (2014) 8 SCC 918
b) Buddhu Singh v. State of Bihar (Now
Jharkhand), JT 2011 (6) SC 617;
c) Jarnail Singh v. State of Punjab, JT 2009 (1) SC
644;
d) Dinesh Kumar Sinha v. State of Jharkhand,
(2009) 6 SCC 628;
12. Learned counsel for the appellants further contended that the
prosecution could not prove the fact that the appellants were
responsible for giving direct injury to the deceased/victim which
caused his death. Lastly, it is contended on behalf of the appellants
that the appellants are in custody since 09.06.2008 and have families
to support and that they are the only bread earners in their families.
13. Ms. Anu Narula, learned counsel for the appellant-Vipin Kumar
contended that the role attributed to the appellant-Vipin is that in the
scuffle that was going on between the victim and other accused, he
held the deceased from back and gave him fists and leg blows.
Whereas the co-accused, Putul, Brijesh and Subhash gave danda, fatta
and musli blows to the victim. It is further contended on behalf of the
appellant-Vipin Kumar that he was arrested on the disclosure of the
co-accused. However, the weapon of offences being danda/ fatta and
musli were recovered from other co-accused and there is no recovery
from the present appellant.
14. Pointing out towards the discrepancies in the prosecution case,
learned counsel for the appellant - Vipin contended that although the
appellant had refused to participate in the TIP in jail but the PW-7 in
his deposition claimed that he gave description/physical appearance of
the accused persons to the police. It is further contended on behalf of
the appellant that there was no motive for the appellant to beat the
deceased/victim. More so, it is submitted that the alleged description
given by PW7 regarding the appellant does not match with the actual
description of the present appellant. Even the eye witness (PW 18
Dinesh) has also not deposed anything against the appellant.
15. Circumstantial discrepancies have been pleaded in the
deposition of PW-14/ Ice-cream wala, PW-7 and PW-28 and
contended that the entire conduct of the PW-7 is questionable and
dubious and the correct genesis of the incident has been suppressed. It
is further contended that there is no evidence against the appellant and
so far as the disclosure of co-accused is concerned, that cannot bind
the appellant, especially in absence of motive/ pre-mediation/
intention or even knowledge on the part of the appellant.
16. It is vehemently argued that Section 34 of IPC cannot be
invoked or presumed and that even if it is presumed that appellant was
there or allegedly held the deceased from back, no intention or
knowledge can be attributed to him only on the basis that any fatal
blow or injury would prove to be sufficient or likely to cause death in
ordinary course. Moreover, it is contended that the deceased died
almost after 1 ½ - 3 days of the incident.
17. On the quantum of sentence, learned counsel for the appellant -
Vipin Kumar contended that the conviction under Section 304(I) IPC
and awarding 10 years imprisonment, is the highest substantive
sentence and apart from the same, awarding of Rs.50,000/- as fine and
in default 3 months SI is exorbitant, especially when admittedly
appellant is a Jhuggi dweller. In support of her contentions, counsel
has relied on the following judgments: -
a) Harbans Nonia and others v. State of Bihar, AIR
1992 SC 125;
b) Vencil Pushpraj v. State of Rajasthan, AIR 1991 SC
536;
c) Tholan v. State of Tamil Nadu, AIR 1984 SC 759;
d) Karuppiah and another v. The State, 1996 Cri.L.J.
3776;
e) Jeev Dan v. The State, 1996 Cri.L.J. 3929;
f) Shailesh alias Shailendra v. State of Maharashtra,
1995 Cri.L.J. 914;
g) Mohd. Issa @ Raj v. State, Crl. A. No.926/2010
decided on 09.04.2013
18. Mr. Amit Chadha, learned Additional Public Prosecutor for the
State vehemently opposed the aforesaid contentions raised by the
counsel representing the respective appellants and submitted that the
prosecution has proved the identity of the accused and the manner in
which the offence was committed. It is further submitted that there is
nothing which could shatter the veracity of the prosecution witnesses
or falsify the claim of the prosecution. All the material witnesses have
supported the prosecution case and the testimonies of the prosecution
witnesses do not suffer from any infirmity, inconsistency or
contradiction and are consistent and corroborative. It is further
submitted that the common intention of the accused persons is writ
large from the fact that all the accused persons acted in consortium
which is evident from the fact that Subhash ran away from the spot to
call others and they immediately came to the spot with whatever they
could lay their hands on. It is further submitted that the learned
Additional Sessions Judge has passed a reasoned order thereby
convicting the appellants after considering all the aspects of the matter
which does not call for any interference from this Court.
19. I have heard the submission made by both the sides and also
gone through the contents of the appeals and the impugned orders
passed by the learned Additional Session Judge in this case.
20. The proportionality of sentence imposed upon the accused
depends on the roll attributed to the accused. In Criminal Appeal No.
945/2004, titled as Pulicherla Nagaraju @ Nagaraja vs State Of
A.P., decided on 18.08.2006, the Hon'ble Apex Court dealt with the
question of determination of the offence under Section 302, 304, Part
I/Part II IPC, in the following words:
"Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution, as
that will decide whether the case falls under Section
302 or 304 Part I or 304 Part II. Many petty or
insignificant matters, plucking of a fruit, straying of a
cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations
and group clashes culminating in deaths. Usual motives
like revenge, greed, jealousy or suspicion may be totally
absent in such cases. There may be no intention. There
may be no pre-meditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may
be cases of murder where the accused attempts to avoid
the penalty for murder by attempting to put forth a case
that there was no intention to cause death. It is for the
courts to ensure that the cases of murder punishable
under section 302, are not converted into offences
punishable under section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are treated
as murder punishable under section 302. The intention to
cause death can be gathered generally from a
combination of a few or several of the following, among
other, circumstances : (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or was
picked up from the spot; (iii) whether the blow is aimed
at a vital part of the body; (iv) the amount of force
employed in causing injury; (v) whether the act was in
the course of sudden quarrel or sudden fight or free for
all fight; (vi) whether the incident occurs by chance or
whether there was any pre- meditation; (vii) whether
there was any prior enmity or whether the deceased was
a stranger; (viii) whether there was any grave and
sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and unusual
manner; (xi) whether the accused dealt a single blow or
several blows. The above list of circumstances is, of
course, not exhaustive and there may be several other
special circumstances with reference to individual cases
which may throw light on the question of intention. Be
that as it may."
21. In the case in hand, while perusing the facts and circumstances
of the case, the indisputable facts are that the appellant - Brijesh
Kumar was apprehended and arrested on 9.6.2008 and on his pointing
out, the other accused persons namely Subhash Kumar, Putul Kumar
and Vipin Kumar were arrested. Danda and fatta used in the
commission of offence were recovered from the appellant - Subhash
and Brijesh from the bushes near the nehar and the other accused
Pramod @ Natu surrendered himself before the learned Metropolitan
Magistrate after process under Section 82/83 Cr. P.C. were issued
against him, i.e., on 29.08.2008 and he had disclosed that he had used
the wooden Musli and he had inflicted injuries upon the victim
Yashwant @ Jaswant Meena.
22. Dr. Kulbhushan Goel (PW-1) has proved the postmortem report
of the deceased which is Ex. PW-1/A and as per the medical evidence
being the MLC of the deceased, it is opined that the cause of death
was brain compression as a result of cranio-cerebral damage/injuries
which were sufficient to cause death in ordinary course of nature and
were consistent with the assault. The injuries on the deceased were
ante-mortem in nature and injuries No.1 and 2 were caused by blunt
force impact.
23. This Court has also gone through the impugned orders and
observes that the learned Additional Sessions Judge had elegantly
discussed the issue of deciding the punishment under the relevant
section in the present facts and circumstances and ultimately reached
to the conclusion of holding the appellants guilty for the offences
under Section 304 (Part II) IPC. The Trial Court has also discussed the
issue of common intention of the accused under Section 34 IPC and
regarding the principal of joint liability in the commission of a
criminal act. For better appreciation, the relevant paragraph is
extracted below:
"In so far as the common intention of the accused are
concerned, I may mention that Section 34 has been
enacted on the principal of joint liability in the doing of a
criminal act. The section is only a rule of evidence and
does not create a substantive offence. The distinctive
feature of the section is the element of participation in
section. The liability of one person for an offence
committed by another in the course of criminal act
perpetrated by several persons arises under Section 34 if
such criminal act is done in furtherance of common
intention of the persons who join in committing the crime.
Direct proof of common intention is seldom available and
therefore such intention can only be inferred from the
circumstances appearing from the proved facts of the
case and the proved circumstances. In order to bring
home the charge of common intention, the prosecution
has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of minds of
all the accused persons to commit the offence for which
they are charged with the aid of Section 34 be if pre-
arranged or on the spur of the moment, but it must
necessarily be before the commission of the crime. The
true concept of the section is that if two or more persons
intentionally do an act jointly, the position in law is just
the same as if each of them has done it individually by
himself. As observed in Ashok Kumar vs. State of Punjab
reported in AIR 1997 (1) SCC 746 the existence of a
common intention among the participants in a crime is
the essential element for application of this section. It is
not necessary that the acts of the several persons charged
with commission of an offence jointly must be the same or
identically similar. The acts may be different in
character, but must have been actuated by one and the
same common intention in order to attract the provision.
The section does not say 'the common intentions of all'
nor does it say 'an intention common to all. Under the
provisions of Section 34 the essence of the liability is to
be found in the existence of a common intention
animating the accused leading to the doing of a criminal
act in furtherance of such intention. As a result of the
application of principles enunciated in Section 34, when
an accused is convicted under Section 302 read with
section 34, in law it means that the accused is liable for
the act which caused death of the deceased in the same
manner as if it was done by him alone. The provision is
intended to meet a case in which it may be difficult to
distinguish between acts of individual members of a party
who act in furtherance of the common intention of all or
to prove exactly what part was taken by each of them. As
was observed in Chinta Pulla Reddy vs. State of A.P.
reported in 1993 Supp (3) SCC 134. Section 34 is
applicable even if no injury has been caused by the
particular accused himself. For applying section 34, it is
not necessary to show some over act on the part of the
accused."
24. Thereafter, the Trial Court dealt with the issue of falling of a
case under the purview of Section 300 IPC or Section 304 IPC and
applying the settled principles of law to the facts of the present case, in
the light of the deposition of witnesses and the material on record
observed that the weapon of offence was a musli which was already in
possession of Pramod @ Natu in normal course which was used for
preparation of juice and the place of incident is near the rehri of
Pramod @ Natu, which shows that there was no preparation or
premeditation. It was further observed that the accused Subhash
immediately ran away from the spot and called others from their
jhuggies, which were just adjacent to the place of quarrel, on which
the other persons came to the spot with whatever they could lay their
hands on i.e. danda and fatta with which they started beating the
deceased and the eye witness Pradeep thereby inflicting injuries on
them. It is further observed that the common intention of the accused
is writ large from the said fact. While the other appellant - Vipin
caught hold of the deceased from the back side, and gave fists and legs
blows which blows were also given to the injured Pradeep Kumar. The
nature of injuries found on the body of the deceased coupled with the
nature of weapons used i.e. danda, musli, fatta etc. are evidence of a
sudden quarrel/fight with the deceased and Pradeep on one side and
the accused on the other. The fact that the common intention between
the accused developed at the spot of the incident itself, was evident
when the deceased Yashwant @ Jaswant Meena and injured Pradeep
ran from the spot in order to save themselves, the accused followed
them while Brijesh gave a fatta blow on the head of the deceased as a
result of which the deceased fell down after running for about 15
steps, and in the meanwhile all the other accused also reached there
and again gave fists, legs, fatta and musli blows to the deceased. This
which establishes that all the accused persons acted in consortium
thereby proving their common intention.
25. The Trial Court further went to observe that the deceased
Yashwant @ Jaswant Meena and his friend Pradeep Kumar ran away
from the spot in order to save themselves, the accused followed them
and it was the accused Brijesh who after 15 steps again given a fatta
blow on the head of the deceased Yashwant @ Jaswant on account of
which the deceased fell down after which all the accused reached the
place where the deceased had fallen and continued to inflict the danda,
musli, fatta, legs and fist blows. The said act of the accused persons in
continuing the chase after the deceased was moving away from the
spot in order to save himself, bring the case within the purview of
Section 304 (Part I) IPC. Accordingly, the accused persons were held
guilty for the offence punishable under Section 304 (Part I) read with
section 34 of IPC (not under Section 302 of IPC). The Trial Court
further held all the accused/appellants guilty for the offence
punishable under Section 323 of IPC for causing simple injuries on the
person of Pradeep Kumar.
26. From the aforesaid discussion of the settled principles, facts and
circumstances as well as the impugned order, this Court finds no
illegality or infirmity in the reasoning given by learned Additional
Session Judge so far as the Appellants - Putul Kumar, Pramod Kumar
alias Natu, Vipin Kumar and Brijesh Kumar and this Court finds no
reason to take a different view from the said order. Accordingly, the
impugned orders dated 04.07.2012 as well as order on sentence dated
07.07.2012 are upheld and the appeals filed by the appellants - Putul
Kumar, Pramod Kumar alias Natu, Vipin Kumar and Brijesh Kumar
are dismissed being without merit.
27. All the appellants are in jail. A copy of the order be sent to Jail
Superintendant to apprise the respective appellants regarding fate of
their appeal.
28. All the four appeals stand disposed of in the aforesaid terms.
(P.S.TEJI)
JUDGE
JULY 12, 2016
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