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2017 Supreme(Del) 1796
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, REKHA PALLI, JJ.
Sanjeev Kumar @ Kalia - Appellant
Versus
State - Respondent
Crl. A. 567 & 568 of 2012
Decided On : 30-05-2017
Advocate Appeared:
For the Appellant : Mr. Pramod Kumar Dubey
For the Respondent: Ms. Radhika, Ms. Aasha Tiwari
The main legal point established in the judgment is the application of Section 34 of the Indian Penal Code, which recognizes vicarious liability and the requirement of prior concert and pre-arranged plan for the application of Section 34.
Headnote:
Section 302/34 IPC - Indian Penal Code - Summary
Fact of the Case:
The appellants were convicted for the offence punishable under Section 302/34 of the Indian Penal Code. The deceased was involved in a heated altercation with the appellants and their co-accused, resulting in the appellants beating and fatally stabbing the deceased. The prosecution presented 20 witnesses, while the appellants did not produce any evidence in their defense. The appellants contended that the trial Court's judgment was based on conjectures and surmises and not supported by the facts and circumstances of the case. They also argued that the testimonies of the prosecution witnesses were inconsistent and unreliable.
Finding of the Court:
The court found the testimonies of the prosecution witnesses to be reliable and trustworthy, and the presence of the appellants at the scene of the crime was established. The court also considered the medical evidence and the recovery of the weapon of offence. The court modified the order of conviction under Section 302 of IPC to Section 304 Part I of IPC for both appellants, based on the absence of premeditation and the lack of evidence to establish a common intention to commit murder.
Issues: The issues revolved around the reliability of the prosecution witnesses, the presence of the appellants at the scene of the crime, the recovery of the weapon of offence, and the establishment of a common intention to commit murder.
Ratio Decidendi: The court applied the principles of Section 34 of the Indian Penal Code, which recognizes the principle of vicarious liability and makes a person liable for the actions of another person with whom they shared a common intention. The court also considered the requirement of prior concert and pre-arranged plan for the application of Section 34. The court emphasized that the existence of a common intention is a question of fact to be inferred from the circumstances of the case.
Final Decision: The court modified the sentence of the appellants to rigorous imprisonment for a period of 9 years under Section 304 Part I of IPC. The court also sentenced the appellant Rajesh to the period already undergone, which was more than 9 years.
G.S. Sistani, J.
1. The present appeals have been filed under Section 374 (2) of the Code of Criminal Procedure against the judgment dated 08.12.2011 and order on sentence dated 12.12.2011 by which both the appellants have been convicted for the offence punishable under Section 302/34 of the Indian Penal Code (hereinafter referred to as ‘IPC’). Additionally, the appellant Sanjeev Kumar @ Kalia has also been convicted for the offence punishable under Section 27 of the Arms Act. Both the appellants have been sentenced to imprisonment for life with a fine of Rs.10,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of six months.
2. At this stage, we may note that Vishal Kumar @ Rajesh Totla, co-accused in the present case, expired during the pendency of the appeal. Accordingly, the appeal Crl. A. 566/2012 stands abated in view of the order dated 12.05.2017.
3. At the outset, Mr. Dubey, learned counsel for the appellant Sanjeev @ Kalia submits that he has instructions not to press the appeal on the point of conviction. However, he submits that no case under Section 302 of IPC is made out. At best, the trial Court could have convicted the appellant for the offence punishable under Section 304 Part I of IPC as there was no pre-meditation. The appellant did not act in a cruel or unusual manner. There is no evidence on record to suggest that the appellant had carried a knife with him to stab the deceased. Mr. Dubey has strongly urged before this Court that the appellant has been in incarceration for a period of about 9 years including the remission earned by him and prays that the appellant be released on the period already undergone by him.
4. The brief facts of the case are that on 09.02.2010, at about 11-11:30 PM, PW3 Raju woke up after hearing the noise of abuses and saw that in front of the fountain in Chandni Chowk, there was a hot altercation and exchange of abuses taking place between one person of long height (deceased/identity unknown) and the appellants and Vishal (co-accused). The appellant Sanjeev told his companions Vishal and Rajesh that the deceased had beaten him alongwith his companion namely Paua @ Bambia. Thereafter, the appellants started beating the deceased, who was abusing the appellants. The appellant Rajesh Thakur and co-accused Vishal @ Totla caught hold of the deceased while the appellant Sanjeev @ Kalia took out a knife from his pocket and gave knife blow on the stomach of the deceased. The intestines of the deceased came out from the abdomen which resulted in his death. Charge under Section 302 read with Section 34 of IPC was framed against the appellant Sanjeev Kumar @ Kalia, Vishal Kumar @ Rajesh Totla and Rajesh @ Rajesh Rickshewala. Additionally, a charge for the offence punishable under Section 25/27 of Arms Act was framed against the appellant Sanjeev Kumar @ Kalia.
5. To bring home the guilt of the appellants, the prosecution examined as many as 20 witnesses. No evidence was produced by the appellants in their defence. Statement of the appellants were recorded under Section 313 of the Code of Criminal Procedure wherein they have stated that they have been falsely implicated in the present case and claimed to be tried.
6. The learned counsels for the appellants have jointly contended that the impugned judgment passed by the trial Court is bad in law and is thus not sustainable. It is also contended that the judgment of the trial Court is based on conjectures and surmises and not supported from the facts and circumstances of the case. The prosecution has not been able to prove his case beyond reasonable doubt. Counsels contend that the deposition made by the material witnesses being PW-3, 7 and 17 are inconsistent, contrary and suffers from glaring discrepancies which would shatter the case made out against the appellants. Also, the testimonies of the prosecution are not of sterling quality.
7. Learned counsels also contend that the trial Court has no
