The judgment clarifies the application of common intention under Section 34 IPC, emphasizing the need for a pre-arranged plan or simultaneous consensus of mind among co-perpetrators, and the distinction between the criminal act and the mental intention to commit the act.

Vaish Sanjiv Khanna, J.

1. Mohd. Saleem by this appeal challenges his conviction under Section 302 read with Section 34 Indian Penal Code, 1860 (IPC) for having caused death of Head Constable Naresh; Section 307 read with Section 34 IPC for having attempted to cause death of ASI Jagpal; Section 427 for causing damage to the PCR van i.e. public property and under Sections 4 and 5(1) of Delhi Agricultural Cattle Preservation Act for transporting and selling cow meat. By order on sentence dated 25th March, 2011, for the offence under Section 302 IPC the appellant has been sentenced to life imprisonment; under Section 307 IPC imprisonment of 10 years with fine of Rs.10,000/-, in default of payment of which, the appellant has to undergo imprisonment of six months; under Section 427 IPC rigorous imprisonment of 1 year and under Section 12 of Delhi Agricultural Cattle Preservation Act, 3 years’ rigorous imprisonment and fine of Rs.5,000/-, in default of payment of fine, he has to undergo imprisonment of 3 months.

The sentences are to run concurrently.

2. The other co-convict Mohd. Azim was subsequently declared juvenile and the appellate proceedings against him stand closed. At this stage, we may record that the two other co-accused, namely, Aas Mohd. and Mohd. Naushad , who were chargesheeted, have been acquitted. State has not preferred any appeal against their acquittal.

3. The prosecution case in brief is that in the intervening night of 14th and 15th May, 2008 at about 3.45 a.m., PCR van Zebra-85 received a message from Zebra-90 that a tempo bearing registration number UP-14X-9976 loaded with slaughtered cow meat was coming from Dhool Siras. The said vehicle had not stopped despite signal by police officers of Zebra-90. On receipt of this message, PCR van Zebra-85 was parked at Najafgarh T-point, on the road coming from the side of the drain. ASI Jagpal, the driver of Zebra-85 and Head Constable Naresh Kumar came out from the vehicle and stood at the side to stop the tempo coming from Dhool Siras. On seeing the tempo, they signaled the driver to stop. The tempo driver, instead of stopping or passing through the open portion of the road, hit the PCR van. ASI Jagpal was thrown at a distance and Head Constable Naresh was dragged by the tempo. PCR van overturned and got entangled with tempo which eventually stopped at some distance. The tempo, a TATA 407 vehicle, stopped in a heap of rubbish. Driver of the tempo along with his associates ran away from the spot. ASI Jagpal was removed to Safdarjung Hospital by Zebra 90 and Head Constable Naresh was taken to RTR Hospital by Zebra 84, where he was declared brought dead.

4. On the basis of the registration number of tempo TATA 407, investigation was started, which led to Mahesh Chand Gupta (PW-12), the registered owner. PW-12 has deposed that he had expressed interest to purchase the said vehicle from one Iqbal, who did not have documents. Iqbal had promised that he would get the documents prepared from the RTO office. PW-12 had gone to the RTO, Ghaziabad and signed the sale letter on the asking of Iqbal. Subsequently, when the documents were received, PW-12 noticed that in the fitness certificate, the vehicle was described as a ‘tanker’. PW-12 informed Iqbal that he wanted to purchase an open vehicle and not a tanker, to which Iqbal promised that he would make efforts to get the word ‘tanker’ deleted. This, however, did not materialize and the deal was treated as cancelled and the vehicle remained with Iqbal. Iqbal had promised to refund the money within 15 days. PW-12 has deposed that he did not know how the vehicle was used by Iqbal.

5. Mohd. Iqbal appeared as PW-15. He has testified that he was in the business of transport and had purchased TATA 407 vehicle bearing registration number UP-14X-9976 in an auction in December, 2007, but the vehicle remained unused till March, 2008. In March, 2008, Mahesh Chand Gupta (PW-12) met him and showed interest in purchasing the vehic