Full Text
Date of Decision: 23rd January, 2014
NAFEES @ BHURA ..... Appellant
Through: Mr. Sumeet Verma, Amicus Curiae along with appellant in person.
Through: Ms.Rajdipa Behura, APP along with SI
Manoj Kumar and HC Girish Chandra., P.S.
Seelampur .
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
1. Appellant Nafees @ Bhura impugns the impugned judgment dated 22.04.1999 convicting him under Section 302 of the Indian Penal Code, 1860(for short „IPC‟) read with Section 34 IPC for murder of Jai Nand and under Section 307 IPC read with Section 34 IPC for attempt to murder Radha. Appellant has also been convicted under Section 392/34 and Section 397 of IPC.
2. By an order of sentence dated 24.04.1999, appellant has been sentenced to imprisonment for life and fine of Rs.2,000/- for the offence under Section 302/34 IPC; 10 years rigorous imprisonment and fine of Rs.2,000/- for the offence under Section 307/34 IPC and seven years 2014:DHC:420-DB rigorous imprisonment and fine of Rs.2,000/- for offence under Section 392/34 read with Section 397 IPC. In default of payment of fine, the appellant has to undergo rigorous imprisonment for two months each in respect of the three defaults.
3. The aforesaid conviction arises out of FIR No.55/1995, P.S. Seelampur.
4. At the outset, we record and notice that the other co-accused, namely, Tahir @ Shahid @ Shahil was not arrested and did not face the trial.
5. We have heard Mr. Sumeet Verma, learned amicus curiae who has appeared for the appellant and Ms. Rajdipa Behura, learned Additional Public Prosecutor for the State.
6. Mr. Sumeet Verma, learned amicus curiae has confined his arguments to appropriateness of conviction of the appellant under Section 302 IPC and Section 307 IPC read with Section 34 IPC. It is submitted that the appellant did not share common intention to commit murder under Section 302 IPC or attempt to murder and accordingly his convictions be altered and modified. It is pointed out that the appellant has already undergone more than eight and a half years of rigorous imprisonment and has earned total remission of more than one year and four months as per nominal roll dated 24.04.2003.
7. On the question of involvement of the appellant, we have to rely upon the statement of injured eye witness Radha (PW[9]). PW[9] has deposed that in the intervening night of 23/24.01.1995, she had a meal with her husband Jain Nand, the appellant Nafees and Tahir at about 11:00 pm and thereafter they watched television. At about 12:30, appellant and Tahir went to sleep in the tea shop adjacent to their room. She went to sleep with her husband and child in their room. She has testified that Tahir used to work in the tea shop of her husband. Tahir used to stay and sleep in the tea shop itself which was situated in the premises. Appellant Nafees was a friend of Tahir and used to reside at night with him in the tea shop and also have food with them at night. Appellant Nafees used to work as raj mistri. She identified appellant Nafees in the court as the person who used to stay at night in the tea shop. PW[9] has further deposed that about 1/1:30 am, appellant Nafees and accused Tahir kicked open the door and entered in their room. Their room was not bolted from inside. Appellant caught hold of her neck while holding a knife in his hand. Tahir hit her husband on his head with a basola. The appellant while holding a knife asked PW[9] to hand over the entire money. PW[9] tried to catch hold the knife from the appellant‟s hand and in the process injured her left hand finger. When she protested and stated that she did not have money, Tahir hit her on her head with the basola. Nearly Rs.2000/- to 2,500/- which was kept in a steel dabba was taken away by the Appellant Nafees and his associate. She fell down due to giddiness because of the injury on her head. Police came to the house and she was taken to the hospital. She had made a statement Ex.PW9/A on the basis of which FIR in question was registered.
8. Police officers Head Constable Ram Singh, Constable Ram Snehi and ASI Jiya Ram have appeared as PWs 6, 8 and 12 respectively. They have in seriatim deposed that in the night of 23/24.01.1995, they were posted at Police Post Shastri Park, Seelampur and were on patrol duty. At about 2:15 am, when they reached near Theka of Shastri Park, they had heard a lady groaning and also sound of a crying baby/child. Threrafter, they went near the house and found that the entrance gate was open and the light was on. After entering the house, they found a dead person lying on the Thakhat with injuries on his forehead, head and face. A cot was lying near that Thakhat and a lady was found sitting on the cot with injuries on her head and her left hand. Articles inside the room were lying scattered and a small baby just 5-6 months old was also on that cot and was crying. The lady, namely, Radha (PW[9]) was taken to GTB Hospital by Constable Ram Snehi. Name of the deceased was Jai Nand, husband of Radha (PW[9]). Incriminating material including one pillow, one quilt, bed sheets, etc. were lifted from the spot. One basola was found. The sketch of the basola has been marked Ex.PW6/B. Basola is an implement used by masons or carpenters. It has a long handle with iron head, the end of which is sharp. It is used for cutting or shaping wood, breaking bricks, stones etc. As per the sketch, the total length of the basola was 33 cms.
9. The names of the appellant Nafees and accused Tahir find mention and were recorded in the complaint made by PW[9], Ex.PW9/A which was converted into a rukka at about 3:50 am and thereafter FIR in question was registered. MLC of Radha has been proved and marked Ex.PW13/A. The same MLC was proved by Dr. Deepa Gupta (PW13) who identified the hand writing and signatures of Dr. Kartikaya. The said MLC was prepared at 2:45 am on 24.01.1995. It is recorded therein that the patient, i.e., PW[9] Radha was conscious oriented. She had contused lacerated wound on the scalp measuring 4 cm x 0.5cm x 0.[5] cm on the right parietal and occipital region and CLW of 0.[5] cms on the left little finger. She had an incised wound on her left ring finger and she was declared fit for statement.
10. It has come on record that both Appellant Nafees and his associate Tahir were absconding and hence not available. The appellant Nafees was arrested on 30.01.1995 as deposed to by Wali Hassain Khan (PW11). PW11 was khadim at the Majaar located at Subhash Park, Daryaganj, Delhi. He has deposed that he knew Nafees and Tahir. Appellant Nafees used to work as a raj mistri. However, he had deposed that Nafees had started working in the tea shop of Jai Nand at Shastri Park where Tahir also used to work. On 24.01.1995, police had come to Majaar and had enquired about accused Nafees and Tahir. On 30.01.1995, when he went to perform namaz at the majaar, he saw Nafees who was present. Thereafter, he informed the police and took them near the majaar and got the appellant Nafees arrested. Arrest memo Ex.PW6/C was signed by him. Appellant Nafees had made the disclosure statement Ex.PW6/D which he signed. In the present case, the disclosure statement has no relevance as no recovery was made and no physical article was taken into possession by the police pursuant to the disclosure statement. There is nothing in the deposition of PW11 which creates doubt about his court statement. PW11 no doubt had stated that appellant Nafees was working at the tea shop, but he has also deposed that Nafees was working as a raj mistri. The court statement was recorded on 09.09.1997 nearly more than two years after the occurrence and this small discrepancy in PW11‟s statement does not mean that we should ignore the main or the principal assertion. Statement of PW11 is corroborated by the statement of Radha (PW[9]), injured wife of the deceased. Radha was also extensively crossexamined, but we do not find any reason to doubt or disregard her version and thus, accept her deposition. PW[9] in her court deposition had stated that she had gone to the police post which is not correct as per statements of the police officers, PWs 6, 8 and 12, but it does not mean and follow that she had not seen the actual occurrence and had not known or named the perpetrators. Her presence at the spot of occurrence was natural and normal as she was residing with her husband. Her husband had a tea shop in the same premises where she was residing. She had made her complaint marked Ex.PW9/A. Her statement gets corroborated from the court deposition of PW[6] Head Constable Ram Singh, PW[8] Constable Ram Snehi and PW12 ASI Jiya Ram. The MLC of Radha Ex.PW13/A fully supports and affirms her version as to the occurrence.
11. Post mortem report of Jai Nand has been proved and marked Ex.PW3/A. The said report was proved by Dr. Anil Kohli (PW[3]) who has opined that the deceased had suffered several incised wounds on the head and forehead/face. The cause of death was due to shock due to ante mortem injuries to the head by a heavy cutting weapon. Injuries No.1 and 8 were sufficient to cause death in the ordinary course of nature, both collectively and independently with the other injuries. However, the weapon of offence was not shown to him.
12. The appellant in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 has asserted that he did not know anything and in response to the last question had stated that he was brought by the police from his house in Bijnor where he was working as a raj mistri. He did not know the deceased Jai Nand and injured Radha was also unknown to him and he had never worked in that tea shop. He asserted that one boy Aslam had accompanied the police to Bijnor and from where he was lifted at the boy‟s instance. However, as noticed, the name of the appellant is duly mentioned in the complaint Ex.PW9/A and the appellant was identified by Radha(PW[9]) in the court. Wali Hussain Khan(PW11), the Khadim of the Majaar also identified the appellant Nafees.
13. Section 34 IPC incorporates principle of vicarious liability when an accused shares a common intention with the actual principal perpetrator of the crime. Two essential requirements of the Section are (i) common intention and (ii) participation of the accused in the commission of the offence. In Suresh & Anr. v. State of U.P., (2001)3 SCC 673, the Supreme Court elucidated the said provision in the following words: “48. In Ramaswami Ayyangar v. State of T.N. [(1976) 3 SCC 779: 1976 SCC (Cri) 518: AIR 1976 SC 2027] this Court declared that Section 34 is to be read along with preceding Section 33 which makes it clear that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, it is essential that in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. In Ramaswami case [(1976) 3 SCC 779: 1976 SCC (Cri) 518: AIR 1976 SC 2027] it was contended that A-2 could not be held vicariously liable with the aid of Section 34 for the act of other accused on the grounds: firstly, he did not physically participate in the fatal beating administered by the co-accused to the deceased and thus the “criminal act” of murder was not done by all the accused within the contemplation of Section 34; and secondly, the prosecution had not shown that the act of A-2 in beating PW was committed in furtherance of the common intention of all the three pursuant to a prearranged plan. Repelling such an argument this Court held that such a contention was fallacious which could not be accepted. The presence of those who in one way or the other facilitate the execution of the common design itself tantamounts to actual participation in the “criminal act”. The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result. Conviction of A- 2 under Sections 302/34 of the Code in that case was upheld.” xxxxxxxxx
14. In Mithu Singh v. State of Punjab, (2001) 4 SCC 193, the Supreme Court acquitted Mithu Singh under Section 302 read with Section 34 IPC, but upheld his conviction under Section 27 of the Arms Act, 1959 observing that inference as to common intention should not be readily drawn; culpable liability can arise only if such inference can be drawn with a degree of assurance. In the facts of the said case, it was observed that the required degree of assurance was missing. At the same time, the Supreme Court observed that while examining the question of common intention, the Court should be conscious and aware that it is difficult, if not impossible, to collect and produce direct evidence and in most cases inference as to the intention shall be drawn from the acts and conduct of the accused and other relevant circumstances as available. The entire observation or ratio of the Supreme Court has to be kept in mind.
15. In Rajesh Kumar v. State of H.P., (2008)15 SCC 705, the Supreme Court elucidated and laid down the following principles as applicable to Section 34 IPC:
16. After referring to the facts of the above case, Rajesh Kumar(supra), the conviction was converted from Section 302 IPC to one under Section 326 IPC highlighting the factual position in the said case that the accused in question had assaulted the victim by a danda on non-vital part.
17. In Arun v. State by Inspector of Police, Tamil Nadu, 2008(16) SCALE, 335, reference was made to the decision of the Privy Council in Hardev Singh & Anr. v. State of Punjab, (1975) 3 SCC 731 and benefit was given to one of the accused as he did not act conjointly with others in committing the murder. The Supreme Court followed the decision in Dharam Pal & Ors. v. State of Haryana, (1978)4 SCC 440 after referring to the test which should be applied before Section 34 IPC can be invoked. We also deem it appropriate to reproduce the said test:
18. When we come to the facts of the present case, we have the statement of Radha (PW[9]). She has deposed to the presence of the appellant Nafees as well as Tahir and has categorically stated that Tahir hit her husband Jai Nand on his head with the basola. At the time when this was happening, the appellant Nafees did not act or utter any word or instigate Tahir. On the other hand, the appellant had only pointed the knife in his hand towards Radha (PW[9]) and asked her for jewellery and money. It is clearly discernible that appellant Nafees did not strike, hit or stab Radha (PW[9]). He also did not strike or stab the deceased Jai Nand. No such role is attributed to the appellant. PW[9] has deposed that her left hand finger got injured when she tried to snatch the knife from Nafees. Even then or thereafter he did not strike or verbally instigate Tahir. PW[9] has stated that Tahir had hit PW[9] on her head with the basola and she fell down because of giddiness due to injury on her head. Injuries suffered by PW[9] have been noticed above. In view of what has been deposed by PW[9], we have doubts in our mind whether the appellant Nafees had shared a common intention to commit the murder of deceased Jai Nand as defined under Section 300 IPC. Certainly, Nafees only shared the common intention with Tahir to commit robbery as defined in Section 392 read with Section 397 IPC. This was the motive and intention. The appellant, Nafees to this extent no doubt, had the common and shared intention. Appellant Nafees had not struck Radha (PW[9]) and did not hit or instigate Tahir to strike the deceased. In Bhaba Nanda Sarma & Ors v. State of Assam, (1977) 4 SCC 396, three accused were prosecuted and punished under Section 302 IPC and against the appellant, the sentence was sustained by aid of Section 34 IPC. The Supreme Court referred to Section 38 IPC and thereafter held as under:
19. Keeping in view the aforesaid factual position, we are inclined to convert the conviction of the Appellant Nafees under Section 302 read with Section 34 IPC to one under Section 304 Part I IPC. The conviction of the appellant under Section 307 read with Section 34 IPC for the injuries or attempt to murder Radha(PW[9]) is sustained. Conviction under Section 392 read with Section 397 IPC and 34 IPC is also sustained. On the quantum of sentence, as already noticed, the appellant has undergone punishment and incarceration for a period of eight years and six months. In view of his conduct, he has earned remission for more than one year and four months.
20. The appeal is accordingly partly allowed and the sentence under Section 302 read with Section 34 IPC is converted to one under Section 304 Part I IPC. The sentence awarded under Sections 307/34 is modified to the period already undergone, while sentence of seven years for offence under Sections 392/397/34 is retained. Similarly for the offence under Section 304 Part I, the appellant Nafees is awarded sentence of imprisonment for the period undergone. We have also noted and the amicus curiae has stated at the bar that the appellant is not involved in any other criminal case and the appellant was released on suspension of sentence on 18.07.2003 and since then, he has not been implicated in any criminal case. Fine of Rs.2,000/- for each offence under Sections 302, 307 and 392 read with Section 397/34 has been imposed. Fine of Rs.2,000/- is imposed for the offence under Section 304 Part I. The other fines are maintained. The said fines will be paid by the appellant within one month from today, in default of which the appellant will have to undergo simple imprisonment for 15 days for each fine of Rs.2000/- in each case.
21. Copy of this order be sent to the Trial Court. The appeal is accordingly disposed of.
(SANJIV KHANNA) JUDGE (G.P. MITTAL)
JUDGE JANUARY 23, 2014