CRL.L.P./534/2019 of STATE Vs JAIVEER SINGH & ANR.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered On: 05.12.2019

CRL.L.P.534/2019

STATE

..... Petitioner

Versus

JAIVEER SINGH & ANR.

..... Respondents

Advocates who appeared in this case:For the Petitioner: Mr. Ravi Nayak, APP with Mr. Sunil Sharma, Additional SecretaryLaw, Justice & LA, GNCTD and Mr. Manmeet Walia, Assistant LegalAdvisor, Law, Justice & LA, GNCTD with Inspector Jagdish, PS-Special CellFor the Respondents: None

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDULHON’BLE MR. JUSTICE I.S. MEHTA

J U M N T

SIDDHARTH MRIDUL, J (ORAL)

CRL.M.A.36943/2019 (Condonation of Delay)

The present application under Section 5 of the Limitation Act, 1963filed on behalf of the applicant/appellant seeks condonation of delay of 48days’ in filing the accompanying leave to appeal.

Having heard Mr. Ravi Nayak, learned APP for the applicant/Stateand for the reasons stated in the application, which are duly supported by anaffidavit, the application is allowed.The delay of 40 days in filing theaccompanying leave to appeal is condoned.

The application is disposed of accordingly.CRL.L.P.534/2019

1.The present leave to appeal under Section 378(1) of the Code ofCriminal Procedure, 1973, instituted on behalf of the State, assails thejudgment and order dated 25.04.2019, rendered by Sh. Ajay Goel,Additional Sessions Judge, Special Judge (NDPS), Dwarka Courts, NewDelhi, in Sessions Case No.441018/2016, arising out of FIR No.203/2010,Police Station- Chhawla, under Sections 307/506/34 of Indian Penal Code,1860 (hereinafter referred to as ‘IPC’) and Sections 25/27 of Arms Act,1959, whereby the learned trial court, whilst convicting respondent No.1Jaiveer @ Monu within the meaning of Section 323 IPC, acquitted him forthe charges framed against him under Sections 307/506/34 IPC.

2.The facts as are necessary for the adjudication of the present leave toappeal are adumbrated in the words of learned trial court as follows:-

“1.Brief facts of the case of prosecution are that on18.12.2010 at about 10.30 p.m. an information was receivedin PS Chhawla vide DD no. 55B. On receipt of the same, SIAkhilesh Bajpai reached the spot in front of house of JaiPrakash, Village Nanak Heri, New Delhi at about 10.45 p.m.along with Ct. Bhullan Tyagi where Sh. Hans Raj was foundand his statement was recorded by SI Akhilesh Bajpai inwhich he stated that he was returning to his home from hisoffice in his accent car No. DL 9CQ 8001 and when atabout 10.15 p.m., he reached in front of house of Jai Prakashat Village Nanakheri, New Delhi, he found that one MarutiSwift car bearing no. 0707 was parked in the gali. Since,

there was no passage for his car to go further, he blew horn ofhis car and on this, the said Maruti Swift car was taken back.He also reversed his car and on finding no passage, he againblew horn. On this, accused Pradeep came out of his MarutiSwift Car, having pistol of black colour in his hand andfired on him. Accused Jaiveer @ Monu and Sandeep @ Sonu,were also with accused Pradeep at that time when the accusedPradeep fired towards him. Accused Pradeep fired anotherround after putting his hand in his car on the conductor's side.Accused Pradeep caught hold of his neck as result of whichhis gold chain was broken and the same was snatched byaccused Pradeep. He also snatched his mobile phone havingNo. [REDACTED]. He came out from his car. Accused Sandeep@ Sonu and Jaiveer @ Monu gave beatings to him. Heinformed the police on telephone no. 100. After the incident,the accused had run away from the spot.”

3.Predicated on the above complaint of Hans Raj PW-2, the subject FIRcame to be registered and SI Akhilesh Bajpai PW-9 prepared site planEx.PW8/B at the instance of the former.

4.It is the prosecution’s case that Hans Raj PW-2, the victim, produced alive cartridge before SI Akhilesh Bajpai PW-9, who prepared sketchEx.PW8/A of the same and subsequently seized it.

5.On 12.02.2011, co-accused Pradeep, who passed away during thependency of the trial, was apprehended by SI Sanjeev Kumar Yadav alongwith another person namely, Vijay, who was not charged for the commissionof the present offence.A separate case being FIR No.37/2011, underSection 25 Arms Act was registered by SI Sanjeev Kumar Yadav at PoliceStation - Crime Branch and the pistol and two live cartridges, allegedlyrecovered from the possession of the co-accused Pradeep were seized.

6.It is further the case of the prosecution that on 26.02.2011, co-accusedPradeep was arrested in the present case by SI Akhilesh Bajpai PW-9, who is

stated to have recorded his disclosure statement.

7.Pursuant thereto on 21.06.2011, accused Jaiveer @ Monu and co-accused Sandeep@ Sonu were arrested by SI Akhilesh Bajpai PW-9; theirarrest memos are exhibited as Ex.PW9/D and Ex PW9/E, respectively.

8.During further investigation, SI Akhilesh Bajpai PW-9 is stated tohave seized the photocopies of the relevant documents in case FIRNo.37/2011, Police Station – Crime Branch, which were inter alia forwardedto the Forensic Science Laboratory for examination.

9.Eventually, the subject charge sheet was filed against accusedPradeep, Sandeep alias Sonu and Jaiveer alias Monu.On 20.09.2013charges for the offence under Sections 307/506/34 IPC was framed againstthe accused Pradeep Kumar, Sandeep alias Sonu and Jaiveer alias Monu andagainst accused Pradeep Kumar alone for the offence under Section 27 ofArms Act.

10.It is observed that Pradeep Kumar, the accused No.1, passed awayduring the pendency of trial, as aforementioned, and Sandeep alias Sonurespondent No.2 herein has absconded and been declared as ProclaimedOffender by the court of competent jurisdiction. In other words, the presentleave to appeal is limited to challenge to the conviction of Jaiveer aliasMonu, only under the provisions of Section 323 IPC; and particularly andspecifically to his acquittal by the trial court, for the charges framed against,him under the provisions of Section 307/506/34 IPC.

11.Having heard learned counsel appearing on behalf of the parties andexamined the evidence on record, the learned trial court proceeded todetermine the question as to whether Jaiveer alias Monu could be said tohave shared common intention in the commission of the offences under

Section 307/506 IPC, along with other accused.

12.A perusal of the evidence on record reveals that the testimony of HansRaj PW-2 was that Pradeep Kumar had fired two bullet shots, directed at himfrom close quarters; but surprisingly both of them completely missed thevictim. Further, the testimony of Hans Raj PW-2 reflects that he located thelive cartridges, allegedly discharged from the weapon seized in other FIRNo.37/2011 from the spot where the present offence was allegedlycommitted, whereas SI Akhilesh Bajpai PW-9, who reached at the placewhere the offence was committed on the same day, did not spot or recovertheliveorusedcartridgesdischargedfromthesubjectweapon,contemporaneously with the time of commission of the offence.

13.It is also pertinent to observe that SI Akhilesh Bajpai PW-9categorically deposed that he had made efforts to trace the used cartridges atthe spot on 18.12.2010, but the same could not recovered owing to darkness.In this behalf, the learned trial court returned finding that it is an admittedposition, as apparent from the testimony of Hans Raj PW-2, that there wasstreet light at the spot and further that there was no fog on the date of theincident. There is further no explanation on behalf of the prosecution as towhy, when Hans Raj PW-2 was able to recover the subject cartridges fromthe spot in question on 18.12.2010 itself, he did not hand them over to SIAkhilesh Bajpai PW-9, when the latter visited at the spot along withConstable Bhullan Tyagi on the same day and waited till the next date i.e.19.12.2010, so to do.

14.Insofar as, Jaiveer alias Monu is concerned, the prosecution failed toestablish that he shared any common intention with the accused PradeepKumar, who is alleged to have discharged the subject weapon, allegedly in

the direction of Hans Raj PW-2.The learned trial court dealt with thisquestion of fact and law in the following words:-

“33.Toapply section 34 IPC apart from the fact that there shouldbe two or more accused, two factors must be established;be two or more accused, two factors must be established;

1) Common intention and;

2) Participation of accused in the commission of anoffence.offence.

34.If common intention is proved but no overt act is attributedto the individual accused, section 34 will be attracted asessentially it involves the vicarious liability but if theparticipation of the accused in the crime is proved, andcommon intention is absent, section 34 IPC cannot beinvoked. It requires prearranged plan and per-supposedprior concert. Therefore, there must be prior meeting ofmind. It can also be developed at the spur of moment butthere must be per-arrangement or premeditated concert.to the individual accused, section 34 will be attracted asessentially it involves the vicarious liability but if theparticipation of the accused in the crime is proved, andcommon intention is absent, section 34 IPC cannot beinvoked. It requires prearranged plan and per-supposedprior concert. Therefore, there must be prior meeting ofmind. It can also be developed at the spur of moment butthere must be per-arrangement or premeditated concert.

In Mahboob Shah Vs. Emperor, AIR 1945 PC 118 it wasobserved that the participation in criminal act of groupis condition precedent in order to fix joint liability.

“Commonintentionimpliesaprearrangedpro-gramme or plan, previous meeting of minds anddiscussion in between all the persons forming thegroup.”

In Ramachander v. State of Rajasthan, 1970 Cr.L.J. 653it was specifically observed that in absence ofany cogentevidence, the common intention cannot be es- tablished. Itwas observed that,

“Where there is no indication of premeditation or of aprearranged plan, the mere fact that the two accusedwere seen at the spot scene or that the two accusedfired as result of which one of the person died andtwo others received simple in- juries could not be heldsufficient to assume common intention.”

35.From the evidence brought forward by the prosecution, it hasnot come on record that the offence in this case wasnot come on record that the offence in this case was

committed after any prearranged programme or preplannedmanner. PW- 2 Sh. Hansraj had assigned the role of beatingonly on the part of accused Jaiveer @ Monu and Sandeep @Sonu and it was only accused Pradeep Kumar who had firedon him. No evidence has come on recordon the basis ofwhich it can be said that there was some prearrangedprogramme or preplan between the accused persons and thefacts constitute that the incident had happened all of suddenon the accused being annoyed due to blowing horn of his carby complainant. The prosecution has not been successfullyable to prove the prior meeting of mind between the accusedpersons to commit the offence charged. It has also not comeon record on the basis of which it can be said that accusedJaiveer was having knowledge that accused Pradeep Kumarwas in possession of pistol. It has also not come on record thataccused Jaiveer had asked accused Pradeep Kumar to fire oncomplainant Sh. Hansraj. In these circumstances, and the lawdiscussed above, it can not safely be held that accused Jaiveer@ Monu was sharing the common intention with the accusedPradeep Kumar for firing on the complainant. Therefore, inabsence of attraction of section 34 IPC, accused Jaiveer @Monu is acquitted for the offence punishable under section307 IPC.

36.As far as the offence punishable under section 506 IPC isconcerned, the only eye-witness of the incident i.e. PW-2 Sh.Hansraj has nowhere deposed about any threat extended tohim by accused Jaiveer @ Monu. So, accused Jaiveer @Monu is acquitted also for the offence punishable undersection 506 IPC.”concerned, the only eye-witness of the incident i.e. PW-2 Sh.Hansraj has nowhere deposed about any threat extended tohim by accused Jaiveer @ Monu. So, accused Jaiveer @Monu is acquitted also for the offence punishable undersection 506 IPC.”

15.Having heard learned APP appearing on behalf of the State andperused the record, we find ourselves in agreement with the finding returnedon behalf of the trial court in this regard.

16.The Hon’ble Supreme Court of India, in the case of Abdul Sayeed vsState of Madhya Pradesh, reported as (2010) 10 SCC 256, in regard to thescope and ambit of section 34 IPC observed, as follows:-

“ ………….

49. Section 34 IPC carves out an exception from general lawthat person is responsible for his own act, as it providesthat person can also be held vicariously responsible forthe act of others if he has the "common intention" tocommit the offence. The phrase "common intention"implies pre-arranged plan and acting in concert pursuantto the plan. Thus, the common intention must be there priorto the commission of the offence in point of time. Thecommon intention to bring about particular result mayalso well develop on the spot as between number ofpersons, with reference to the facts of the case andcircumstances existing thereto. The common intentionunder Section 34 IPC is to be understood in differentsense from the "same intention" or "similar intention" or"common object". The persons having similar intentionwhich is not the result of the pre- arranged plan cannot beheld guilty of the criminal act with the aid of Section 34IPC. (See Mohan Singh & Anr. v. State of Punjab, AIR1963 SC 174).that person is responsible for his own act, as it providesthat person can also be held vicariously responsible forthe act of others if he has the "common intention" tocommit the offence. The phrase "common intention"implies pre-arranged plan and acting in concert pursuantto the plan. Thus, the common intention must be there priorto the commission of the offence in point of time. Thecommon intention to bring about particular result mayalso well develop on the spot as between number ofpersons, with reference to the facts of the case andcircumstances existing thereto. The common intentionunder Section 34 IPC is to be understood in differentsense from the "same intention" or "similar intention" or"common object". The persons having similar intentionwhich is not the result of the pre- arranged plan cannot beheld guilty of the criminal act with the aid of Section 34IPC. (See Mohan Singh & Anr. v. State of Punjab, AIR1963 SC 174).

50. The establishment of an overt act is not requirement oflaw to allow Section 34 to operate inasmuch this Sectiongets attracted when criminal act is done by severalpersons in furtherance of the common intention of all.What has, therefore, to be established by the prosecution isthat all the concerned persons had shared commonintention. (vide : Krishnan & Anr. v. State of Kerala,(1996) 10 SCC 508; and Harbans Kaur & Anr. v. State ofHaryana, (2005) 9 SCC 195 ).law to allow Section 34 to operate inasmuch this Sectiongets attracted when criminal act is done by severalpersons in furtherance of the common intention of all.What has, therefore, to be established by the prosecution isthat all the concerned persons had shared commonintention. (vide : Krishnan & Anr. v. State of Kerala,(1996) 10 SCC 508; and Harbans Kaur & Anr. v. State ofHaryana, (2005) 9 SCC 195 ).

51. Undoubtedly, the ingredients of Section 34, i.e., that theaccused had acted in furtherance of their common intentionis required to be proved specifically or by inference, in thefacts and circumstances of the case. (Vide: Hamlet aliasSasi & Ors. v. State of Kerala, (2003) 10 SCC 108; Pichaialias Pichandi & Ors. v. State of Tamil Nadu, (2005) 10SCC 505; and Bishna alias Bhiswadeb Mahato & Ors. v.State of West Bengal, (2005) 12 SCC 657).accused had acted in furtherance of their common intentionis required to be proved specifically or by inference, in thefacts and circumstances of the case. (Vide: Hamlet aliasSasi & Ors. v. State of Kerala, (2003) 10 SCC 108; Pichaialias Pichandi & Ors. v. State of Tamil Nadu, (2005) 10SCC 505; and Bishna alias Bhiswadeb Mahato & Ors. v.State of West Bengal, (2005) 12 SCC 657).52.In Gopi Nath @ Jhallar v. State of U.P., (2001) 6 SCC 620,this court observed as under:this court observed as under:

"8.....Even the doing of separate, similar or diverse actsby several persons, so long as they are done in furtheranceof common intention, render each of such persons liablefor the result of them all, as if he had done them himself,of common intention, render each of such persons liablefor the result of them all, as if he had done them himself,

for the whole of the criminal action -- be it that it was notovert or was only covert act or merely an omissionconstituting an illegal omission. The section, therefore, hasbeen held to be attracted even where the acts committed bythedifferentconfederatesaredifferentwhenitisestablished in one way or the other that all of themparticipated and engaged themselves in furtherance of thecommon intention which might be of pre- concerted orpre-arranged plan or one manifested or developed at thespur of the moment in the course of the commission of theoffence. The common intention or the intention of theindividualconcernedinfurtheranceofthecommonintention could be proved either from direct evidence or byinference from the acts or attending circumstances of thecase and conduct of the parties. The ultimate decision, atany rate, would invariably depend upon the inferencesdeducible from the circumstances of each case."

53.In Krishnan and Anr. v. State represented by Inspector ofPolice, (2003) 7 SCC 56, this courtobserved thatapplicability of Section 34 is dependent on the facts andcircumstances of each case. No hard and fast rule can bemade out regarding applicability or non-applicability ofSection 34.54.In Girija Shankar v. State of U.P., (2004) 3 SCC 793, it isobserved that Section 34 has been enacted to elucidate theprinciple of joint liability of criminal act:

"Section 34 has been enacted on the principle of jointliability in the doing of criminal act. The section is only arule of evidence and does not create substantive offence.The distinctive feature of the section is the element ofparticipation in action. The liability of one person for anoffence committed by another in the course of criminal actperpetrated by several persons arises under Section 34 ifsuch criminal act is done in furtherance of commonintention 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 thecircumstances appearing from the proved facts of the caseandtheprovedcircumstances."[Emphasisadded](Emphasis added)

55.In Virendra Singh v. State of Madhya Pradesh, JT 2010 (8)SC 319, this Court observed that:

"Section 34 IPC does not create any distinct offence, but itlays down the principle of constructive liability. Section 34IPC stipulates that the act must have been done infurtherance of the common intention. In order to incur jointliability for an offence there must be pre- arranged andpre-meditated concert between the accused persons fordoing the act actually done, thoughthere might not belong interval between the act and the pre-meditation andthough the plan may be formed suddenly. In order thatsection 34 IPC may apply, it is not necessary that theprosecution must prove that the act was done by aparticular or specified person. In fact, the section isintended to cover case where number of persons acttogether and on the facts of the case it is not possible forthe prosecution to prove as to which of the persons whoacted together actually committed the crime. Little or nodistinction exists between charge for an offence under aparticular section and charge under that section read withSection 34."

56.Section 34 can be invoked even in those cases where someof the co- accused may be acquitted provided, it can beproved either by direct evidence or inference that theaccused and the others have committed an offence inpursuance of the common intention of the group. (vide:Prabhu Babaji v. State of Bombay, AIR 1956 SC 51).

57.Section 34 intends to meet case in which it is not possibleto distinguish between the criminal acts of the individualmembers of party, who act in furtherance of the commonintention of all the members of the party or it is notpossible to prove exactly what part was played by each ofthem. In the absence of common intention, the criminalliability of member of the group might differ according tothe mode of the individual's participation in the act.Common intention means that each member of the group isaware of the act to be committed.”

17.From plain reading of the above extracted paragraphs of theimpugned judgment, in the backdrop of the decision above extracted, it isaxiomatic that the prosecution failed to establish that, insofar as Jaiveer aliasMonu is concerned, he shared any common intention with the accused

Pradeep Kumar, who allegedly fired two shots at the complainant Hans RajPW-2. There is not even shred of material on record that goes to show thatthe accused Jaiveer alias Monu exhorted the accused Pradeep Kumar to fireon the complainant Hans Raj PW-2. The mandatory ‘prior meeting of mind’on the part of Jaiveer alias Monu with the accused Pradeep Kumar, whoallegedly discharged the weapon at Hans Raj PW-2, is conspicuous by itsabsence. In the circumstances and the ratio of the decisions referred to bythe learned trial court, we are in agreement with the findings returned; thatthe same cannot be safely relied upon to hold Jaiveer alias Monu as havingshared the common intention with the accused Pradeep Kumar, sincedeceased, for firing the subject weapon upon the complainant Hans RajPW-2.

18.Insofar as, charge framed under Section 323 IPC is concerned, the trialcourt returned finding that the prosecution had been successfully able toestablish that Jaiveer alias Monu, the solitary respondent, had inflictedbeatings on the complainant Hans Raj PW-2 and, resultantly, found himguilty for the commission of offence of simple hurt.

19.We are informed at the Bar that Jaiveer alias Monu has alreadyinstituted an appeal, being Criminal Appeal No.1224/2019, thereby assailinghis conviction for the offence of causing simple hurt and the resultantsentence imposed upon him.

20.For the purposes of the present proceedings, instituted by the state,we may only observe that the prosecution also failed to produce any MLCqua the injuries suffered by Hans Raj PW-2, the victim in the present case.

21.It is, therefore, clarified that, nothing in this order shall be construed,as this Court having expressed any opinion in relation to the trial court’s

conviction of Jaiveer alias Monu for the commission of offence underSection 323 IPC.

22.In view of the foregoing discussion, we do not find any error orperversity in the findings returned by the trial court, insofar as, it relates tothe acquittal of Jaiveer alias Monu for the commission of the offences underSection 307/506/34 IPC, so as to warrant interference by this Court in thepresent leave to appeal.

23.The parameters within which the appellate court can examine thefindings arrived at by the trial court are no longer res integra and areelaborated as under:-

“The Apex Court in the case of Ghurey Lal v. State of U.P.reported in 2008 (10) SCC 450 has laid down the followingprinciples before granting leave to appeal against an order ofacquittal:reported in 2008 (10) SCC 450 has laid down the followingprinciples before granting leave to appeal against an order ofacquittal:

1.The appellate court may only overrule or otherwisedisturb the trial court's acquittal if it has "verysubstantial and compelling reasons" for doing so.disturb the trial court's acquittal if it has "verysubstantial and compelling reasons" for doing so.

number of instances arise in which the appellatecourt would have "very substantial and compellingreasons" to discard the trial court's decision. "Verysubstantial and compelling reasons" exist when:

i)The trial court's conclusion with regard to thefacts is palpably wrong;facts is palpably wrong;

ii)The trial court's decision was based on anerroneous view of law;erroneous view of law;

iii)The trial court's judgment is likely to result in"grave miscarriage of justice";"grave miscarriage of justice";

iv)The entire approach of the trial court in dealingwith the evidence was patently illegal;with the evidence was patently illegal;

v)The trial court's judgment was manifestly unjustand unreasonable;and unreasonable;

vi)The trial court has ignored the evidence ormisread the material evidence or has ignoredmisread the material evidence or has ignored

materialdocumentslikedyingdeclarations/report of the Ballistic expert, etc.report of the Ballistic expert, etc.

vii)This list is intended to be illustrative, notexhaustive.exhaustive.

2.The Appellate Court must always give proper weightand consideration to the findings of the trial court.and consideration to the findings of the trial court.3.If two reasonable views can be reached - one that leadsto acquittal, the other to conviction - the HighCourts/appellate courts must rule in favour of theaccused.”to acquittal, the other to conviction - the HighCourts/appellate courts must rule in favour of theaccused.”

24.It is trite to state that the settled legal position, is that where two viewsare reasonably possible from the very same evidence, the prosecution cannotsaid to have proved its case beyond reasonable doubt [Ref:T. Subramanianvs. State of Tamil Nadureported as (2006) 1 SCC 401]. It was further heldthat, when two views are possible, the appellate court should not reverse ajudgment of acquittal, merely because another view was possible [Ref:K.Prakashan vs. P.K. Surenderan, reported as (2008) 1 SCC 258].

25.It is also the well settled legal position that, the presumption ofinnocence that obtains in favour of an accused person, is further strengthenedby the order of acquittal passed in his favour by the trial court. It is furtherobserved that, the appellate court is generally loath to interfere with thefindings of fact recorded by the trial court, fortiori because the latter hashad an advantage of examining in the first person the demeanor of thewitnesses. Therefore, when the trial court takes plausible view of the factsof the case, interference by the appellate court with the judgment of acquittalis neither warranted nor justified. It is only when the conclusions arrived atby the trial court are palpably wrong and against the weight of evidence or

predicated on an erroneous view of law which would result in graveinjustice, that the appellate court would interfere with the findings returned.

26.We are, therefore, of the considered view that the present leave toappeal petition is devoid of merit. The same is accordingly dismissed.

SIDDHARTH MRIDUL(JUDGE)

DECEMBER 05, 2019dn /ad/rs

I.S. MEHTA(JUDGE)