Ramesh Alias Dapinder Singh v. State of Himachal Pradesh
UDAY UMESH LALIT, J.
1. Delay condoned. Leave granted.
2. This appeal challenges the judgment and order dated 09.09.2016
passed by the High Court of Himachal Pradesh at Shimla in Cr iminal
Appeal No. 267 of 2016.
3. The appellant – original accused No.3 was tried along with two
others in Sessions Trial No. 40 of 2014 on the file of Additional Sessions
Judge (II), Una, Himachal Pradesh, in respect of offences p unishable
under Sections 302, 323, 324 read with Section 34 of the Indian Penal
Code, 1860 (‘the IPC’, for short).
4. The basic facts leading to the aforementioned Trial, as sta ted
by PW1-Sukhwinder Singh, the original informant, were as under:-
“…In November 2013, I had taken away Puja Devi daughter of
Satnam Singh, resident of Dangoli, Tehsil and Distt. Una, and had
subsequently married her. The accused Nirmal Singh is my
maternal uncle, and the aforesaid Puja Devi is his sister-i n-law
(Saali). On this count, my maternal uncle Nirmal Singh nursed an
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ill-will against me. I had come home to Pubowal from Baddi on
16.03.2014. I had met my friends Kulwinder alias Babbi and Daljit
Singh alias Deepu on 18.03.2014 at Pubowal at about 8.00 p.m.
On my request, they accompanied me to house of my matern al
grandmother at Baliwal. We travelled to the said pla ce by
motorcycle bearing registration No. PB.08-BL-1390, belonging
to Babbi. We reached my maternal home at about 8.30 p.m. In
my maternal home, my grandmother and both my maternal uncles,
Sadhu Singh and Nirmal Singh were present. On reaching the
house we paid respect to my grandmother and uncles by touching
feet etc. But my uncles started abusing me and quarrelling wi th
me. During the scuffle, the shirt of Babbi was torn. Thereupon,
we hurriedly left the spot on the motorcycle, which was being
driven by Daljit Singh. When we had reached near the High School,
Kulwinder Singh alias Babbi stated that he had dropped his purse
somewhere. We began looking for the purse, after getting down
from the motorcycle. Suddenly both my maternal uncles, Sadhu
Singh and Nirmal Singh, along with their driver namely Ramesh
Kumar, came there on a motorcycle, bearing No. HP.20C-3641,
being driven by my uncle Sadhu Singh. There was a stick (Danda)
tied to the handle of the motorcycle. Thereafter, the three persons
got down from the motorcycle and started assaulting us with Danda
and fist blows etc. My uncle Sadhu Singh had a Danda, whereas
my uncle Nirmal Singh had a sickle (Darat) in his hand. He gave
me a blow with the Darat, as a result of which my finger was cut.
Then he gave a blow which landed on the arm of Daljit Singh, and
thereafter gave another blow to Daljit Singh on his neck.
Thereupon, I ran and hid myself behind a bush. From there I saw
my uncles Sadhu Singh and Nirmal Singh administering blows to
my friends, Babbi and Daljit. On seeing this, I ran away further.
Thereafter, Babbi also ran away from the spot. The Driver
Ramesh, thereafter ran away from the spot and started rais ing a
cry, upon which many people gathered on the spot. Thereafter,
the police came to the spot at about 10.45 to 11.00 p.m. Thereafter,
I came out from the bush and saw the dead body of Daljit Singh
lying on the ground. I stated to the police about the incident. The
police recorded my statement, Ext. PW1/A. I have see n the
statement, which bears my signatures, which I had appended after
the contents of the statement were read over and explained to me
RAMESH ALIAS DAPINDER SINGH v. STATE OF HIMACHAL
PRADESH [UDAY UMESH LALIT, J.]
by the police. My friend Daljit Singh was murdered. The police
carried out the investigation on the spot. …”
5. Kulwinder Singh alias Babbi, whose presence was referred to
by PW1-Sukhwinder Singh, was examined as PW7. But this witness did
not support the prosecution and was declared hostile. It was asserted by
this witness as under:-
“…It is incorrect that on my intervening, I was given a stick blow
by Sadhu Singh, which landed on my back, and I was given fist
and kick blows by Ramesh due to which I sustained injuries. Self
stated that our altercation was with some other persons. It is
incorrect that Sadhu Singh caught me and in the process we fell
on the rough surface on the spot. I cannot say whether Dalj it
Singh and Sukhwinder were given Darat blows by Harjinder Singh
alias Nimma, and Daljit Singh received injuries on his neck and
arm. It is correct that Sukhwinder had sustained injury on his
arm. However, I cannot say what was the reason from the same.
I did not see any injuries on the person of Daljit Si ngh and
Sukhwinder Singh, on the spot. It is correct that there was ample
moonlight at that time. It is correct that I escaped from the spot,
saving myself from the assault of the accused, towards the bushes.
…”
6. Thus, the testimonies of two witnesses, who had accompanied
the deceased, were not quite consistent. PW15-Dr. G. S. Didhra deposed
about the injuries suffered by PWs 1 and 7. Injuries of PW1 were:-
“1. Clean incised wound on left middle finger distal to inter
pnallyngeal joint.
2. Sickle shape clean incised wound on left middle phallynx or
ring finger.”
Further, following injuries were found on the person of PW7:-
“1. Clean impact contusion over left shaft of humerous. 3 cm
long.
2. Impact contusion below left angle of scapula measuring 3.5 x
0.5 cms.
3. Impact contusion about right supra scapular region measuring
4 cms x 0.5 cms.
4. Multiple patch abrasions over right elbow and its lower end.
5. Left impact contusion below left elbow joint measuring 2 x3
cms.
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6. Two impact contusions and abrasions over both knee joints ,
right heel and toe (Metatarso phalyngeal joint).”
7. PW27-Dr. Piyush Nanda, who had conducted Post Mortem on
the body of the deceased, deposed about the injuries of the deceased as
under:-
“(i) Clean incised measuring 3-1/2” x 1-1/2" x 4" and on the left
side, margin sharp extending below the angle of mandible to the
whole of ear lobe with cut through injury to the carotid artery and
jugular vessels with cut through injury to all the neck muscle and
fascia and tissue with fracture mandible (angle).
(ii) Clean incised wound measuring 2x1" x bone depth with fracture
of metacarpal bones on the right wrist.
All the above injuries were found to be ante mortem in nature. In
my opinion he died due to haemorrhagic shock due to injuries to
the left carotid and jugular vessels.
… … …
I have seen the darat Ex. S1. The injuries of the kind mentioned
above are possible by the said weapon/implement. My writ ten
opinion regarding the injuries being possible by the weapon shown
to me is in red circle Ext.PW27/C.”
8. Considering the eyewitness account, the Trial Court by its order
dated 07.04.2016 convicted all three accused under Section 302 read
with Section 34 of the IPC; Section 323 read with Section 34 of the IPC;
and Section 324 of the IPC and sentenced each of the accused to undergo
life imprisonment under the first count and sentences of rigorous
imprisonment of one year and three years on the second count and third
count respectively, in addition to imposition of fine and default sentence.
9. The convicted accused approached the High Court by fili ng
Criminal Appeal No. 267 of 2016, which was dismissed by the Hig h
Court by its judgment and order dated 09.09.2016.
10. It must be stated that the order passed by the High Cou rt
affirming the conviction and sentence, was accepted by accused Nirmal
Singh and no further challenge was raised. However, accused Sadhu
Singh preferred Special Leave Petition (Crl.) No. 1817 of 2019, which
was dismissed by this Court on 10.07.2019.
11. Appearing in support of the appeal, Mr. P.K. Dey, learned
advocate submitted that the appellant was neither armed with any Lathi
RAMESH ALIAS DAPINDER SINGH v. STATE OF HIMACHAL
PRADESH [UDAY UMESH LALIT, J.]
or Danda nor was there any assertion from PW1-Sukhwinder Singh
attributing any specific overt act to the appellant. On th e other hand,
such specific overt acts were attributed to accused Sadhu S ingh and
Nirmal Singh. Mr. Dey also stressed the fact that the appellant had run
away from the spot and had raised a cry, upon which many people
gathered at the spot. It was, therefore, submitted by Mr. Dey that the
appellant could not be said to be guilty with the aid of Section 34 of the
IPC.
12. Mr. Abhimanyu Jhamba, learned Advocate appearing for the
State, however, relied upon the facts that the appellant had come along
with accused Sadhu Singh and Nirmal Singh who were separately armed
with Danda and Sickle; and that the appellant had given fist and kick
blows. In the submission of the learned counsel, these facts pointed
towards active participation on part of the appellant and, therefore, the
courts below had rightly found him guilty with the aid of Section 34 of
the IPC.
13. The principle of vicarious liability under Section 34 of the IPC
states, “when a criminal act is done by several persons in furtherance
of the common intention of all”, each of those persons would be liable
for ‘that act’ in the same manner as if it were done by him alone.
First and foremost, the ocular testimony in support of the
prosecution is only by way of the testimony of PW1. That witness did
not attribute any specific overt act to the appellant insofar assault on the
deceased was concerned; nor was the appellant stated to be armed with
any weapon. It was not even the case that the appellant had exhorted or
had facilitated, in any manner, the assault on the decease d. The only
attribution to the appellant was regarding common or collective act where
“three persons got down from the motorcycle and started a ssaulting
with Danda and fist blows”.
14. Going by the narration of PW1, accused Sadhu Singh and
Nirmal Singh had abused him and his friends at the residence of h is
maternal uncle leading to a quarrel and scuffle. The appellant was n ot
attributed presence and participation in such quarrel or scuffle.
15. In a situation where the overt acts were attributed to principal
accused and not to a person accompanying such principal accused, the
observations in some of the cases decided by this Court are:-
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a) Dharam Pal and others v. State of Haryana 1
“15. A criminal court fastening vicarious liability must satisfy
itself as to the prior meeting of the minds of the principal
culprit and his companions who are sought to be
constructively made liable in respect of every act committed
by the former. There is no law to our knowledge which
lays down that a person accompanying the principal culprit
shares his intention in respect of every act which the latter
might eventually commit. The existence or otherwise of
the common intention depends upon the facts and
circumstances of each case. The intention of the principal
offender and his companions to deal with any person who
might intervene to stop the quarrel must be apparent from
the conduct of the persons accompanying the principal culprit
or some other clear and cogent incriminating piece of
evidence. In the absence of such material, the companion
or companions cannot justifiably be held guilty for every
offence committed by the principal offender. …”
b) Vithal Laxman Chalawadi and others v. State of
Karnataka 2
“15. As regards the role of appellant Gangappa, the
evidence on record suggests that he gave a chappal-blow
to PW 6, the mother of the deceased Ramesh. There is no
other overt act attributed to Appellant 3-accused wh o
appears to have joined the melee when tempers ran high.
The allegation that he exhorted Accused 1 and 2 to kill the
deceased has not in our opinion been satisfactorily proved
to justify his conviction for murder with the help of Section
34 IPC.
16. The nature of the evidence on record and the role that
appellant Gangappa is alleged to have played, does not, in
our opinion, establish that Appellant 3 shared the common
intention with Nijappa and Vithal to commit the murder of
deceased Ramesh. The conviction of Appellant 3-accused
for the offence of murder punishable under Section 302
IPC read with Section 34 IPC is, therefore, not sustainable.
The evidence, however, proves beyond a reasonable doubt
that the appellant, Gangappa assaulted PW 6 Putalavva with
1 (1978) 4 SCC 440
2 (2010) 14 SCC 739
RAMESH ALIAS DAPINDER SINGH v. STATE OF HIMACHAL
PRADESH [UDAY UMESH LALIT, J.]
a chappal. His conviction under Section 323 IPC by the
trial court and the High Court deserves to be affirmed.”
c) `Bishu Sarkar and others v. State of West Bengal 3
“7. … The allegations coming from all the witnesses are
consistent that none of the present appellants had dealt any
blow by any weapon and all that they did was to participate
in the scuffle. It is true that PWs 2 and 5 assert that th e
present appellants had caught hold of Raju Bose. But it is
not clear from the record whether such act was so intended
to enable Accused 1 to deal the fatal blow. Further, PW 3 is
completely silent on this aspect.
8. In the circumstances we deem it appropriate to grant
benefit of doubt to the present appellants and acquit them
of the charge under Section 302 read with Section 34 IPC.
This appeal is thus allowed and the conviction and sentence
recorded against the present appellants is set aside. ...”
16. Having considered the entire material on record, in our view,
it cannot be said with certainty that the appellant sha red the common
intention with accused Sadhu Singh and Nirmal Singh to commit th e
murder of the deceased or that the appellant had done something ‘in
furtherance’ of the common intention of all. Giving him benefit of doubt,
we absolve him of the liability under Section 34 of the IPC insofar as the
charges under Sections 302 and 324 of the IPC are concerned. We,
however, find him guilty of the offence punishable under Section 323
read with Section 34 of the IPC. Affirming such conviction and sentence,
we grant benefit of doubt to the appellant and acquit him of all the other
charges.
17. This appeal is, therefore, allowed to the aforementioned extent.
If the appellant has undergone the sentence in respect of offence under
Section 323 read with Section 34 of the IPC, he be set at liberty, unless
his custody is required in connection with any other offence.
3 (2017) 11 SCC 105
Bibhuti Bhushan Bose Appeal partly allowed.