Nafees @ Bhura Vs State (NCT of Delhi)

Sanjiv Khanna, J.@mdashAppellant Nafees @ Bhura impugns the impugned judgment dated 22.04.1999 convicting him u/s 302 of the Indian Penal Code, 1860 (for short ''IPC'') read with Section 34 IPC for murder of Jai Nand and u/s 307 IPC read with Section 34 IPC for attempt to murder Radha. Appellant has also been convicted u/s 392/34 and Section 397 of IPC. 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 u/s 302/34 IPC; 10 years rigorous imprisonment and fine of Rs. 2,000/- for the offence u/s 307/34 IPC and seven years rigorous imprisonment and fine of Rs. 2,000/- for offence u/s 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.

2. The aforesaid conviction arises out of FIR No. 55/1995, P.S. Seelampur.

3. 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.

4. 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.

5. Mr. Sumeet Verma, learned amicus curiae has confined his arguments to appropriateness of conviction of the appellant u/s 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 u/s 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.

6. On the question of involvement of the appellant, we have to rely upon the statement of injured eye witness Radha (PW9). PW9 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. PW9 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 PW9 to hand over the entire money. PW9 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.

7. 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. Thereafter, 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 (PW9) was taken to GTB Hospital by Constable Ram Snehi. Name of the deceased was Jai Nand, husband of Radha (PW9). 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.

8. The names of the appellant Nafees and accused Tahir find mention and were recorded in the complaint made by PW9, 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., PW9 Radha was conscious oriented. She had contused lacerated wound on the scalp measuring 4 cm x 0.5 cm 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.

9. 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 (PW9), injured wife of the deceased. Radha was also extensively cross-examined, but we do not find any reason to doubt or disregard her version and thus, accept her deposition. PW9 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 PW6 Head Constable Ram Singh, PW8 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.

10. Post mortem report of Jai Nand has been proved and marked Ex. PW3/A. The said report was proved by Dr. Anil Kohli (PW3) 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.

11. The appellant in his statement recorded u/s 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 (PW9) in the court. Wali Hussain Khan (PW11), the Khadim of the Majaar also identified the appellant Nafees.

12. 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 and Another Vs. State of U.P., the Supreme Court elucidated the said provision in the following words:

48. In Ramaswami Ayyangar and Others Vs. State of Tamil Nadu, ] 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 Ayyangar and Others Vs. State of Tamil Nadu, ] 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.

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52. In Surendra Chauhan Vs. State of M.P., this Court held that apart from the fact that there should be two or more accused, two factors must be established--(i) common intention, and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. Referring to its earlier judgment this Court held: (SCC p. 117, para 11)

11. u/s 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. Ramaswami Ayyangar and Others Vs. State of Tamil Nadu, ) The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. Rajesh Govind Jagesha Vs. State of Maharashtra, To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.

13. In Mithu Singh Vs. The State of Punjab, , the Supreme Court acquitted Mithu Singh u/s 302 read with Section 34 IPC, but upheld his conviction u/s 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.

14. In Rajesh Kumar Vs. State of H.P., , the Supreme Court elucidated and laid down the following principles as applicable to Section 34 IPC:

13. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises u/s 34 if such criminal act is done in furtherance of a common intention 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 the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab, the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

15. After referring to the facts of the above case, Rajesh Kumar(supra), the conviction was converted from Section 302 IPC to one u/s 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.

16. In Arun Vs. State by Inspector of Police, Tamil Nadu, reference was made to the decision of the Privy Council in Hardev Singh and Another Vs. The State of Punjab, 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 and Others Vs. State of Haryana, 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:

14. It may be that when some persons start with a prearranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.

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.

17. When we come to the facts of the present case, we have the statement of Radha (PW9). 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 (PW9) and asked her for jewellery and money. It is clearly discernible that appellant Nafees did not strike, hit or stab Radha (PW9). He also did not strike or stab the deceased Jai Nand. No such role is attributed to the appellant. PW9 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. PW9 has stated that Tahir had hit PW9 on her head with the basola and she fell down because of giddiness due to injury on her head. Injuries suffered by PW9 have been noticed above. In view of what has been deposed by PW9, 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 u/s 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 (PW9) and did not hit or instigate Tahir to strike the deceased. In Bhaba Nanda Sarma and Others Vs. State of Assam, three accused were prosecuted and punished u/s 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:

6. On the evidence of Gopi Nath himself the result aforesaid follows. Shashi Mohan had reached near him and when he tried to obstruct the accused and prevent them from committing the assault on Shashi Mohan, Harendra said "we have met enemy today, need not be freed". Thereupon Bhaba Nanda caught hold of the hands of Shashi Mohan from behind. Phanidhar then gave him the blow on the head, as already stated, with the dolibari. Harendra gave further blows on his head and other parts of his body after Shashi fell down. On these facts it is difficult to conclude that Bhaba Nanda caught hold of the hands of Shashi sharing the common intention of Phanidhar and Harendra of causing the death of Shashi. He did not utter a word which would justify such a conclusion. He must be aware that his two elder brothers Phanidhar and Harendra were going to assault Shashi with their respective weapons in their hands. Bhaba Nanda did not use his lathi for causing any injuries on Shashi. The first blow was given by Phanidhar. Thereupon Shashi fell down. Bhaba Nanda''s intention, therefore, was to join in the commission of the acts by the other two with the intention of getting Shashi assaulted severely with the knowledge that such an assault in all probability and likelihood might result in the death of Shashi. His participation in the crime, therefore, did not take him to the extent of the sharing of the common intention to cause his murder. As we have said above, Phanidhar and Harendra undoubtedly shared such an intention as is apparent from the manner of assault by them on Shashi and the severity and force with which the blows were given on his head by both of them with the respective weapons in their hands. Applying the principle of law u/s 38 of the Penal Code, therefore, the case of Bhaba Nanda can be separated from that of the other two. He can be held guilty only u/s 304 Part II as he had intentionally joined in the commission of an act with the knowledge that the assault on Shashi was likely to result in his death. The facts of this case indicate that Bhaba Nanda shared the common intention of his other two brothers for the commission of a lesser offence than murder. But while committing the act in furtherance of that common intention, Phanidhar and Harendra developed and shared the common intention of causing his murder.

7. For the reasons stated above, the appeal of appellants Phanidhar and Harendra is dismissed. The appeal of Bhaba Nanda is partly allowed. His conviction is altered from Sections 302/34 to Section 304 Part II read with Section 34. The sentence of life imprisonment imposed on him is altered to rigorous imprisonment for 7 years only. The conviction of all the appellants under Sections 323/34 is also maintained.

18. Keeping in view the aforesaid factual position, we are inclined to convert the conviction of the Appellant Nafees u/s 302 read with Section 34 IPC to one u/s 304 Part I IPC. The conviction of the appellant u/s 307 read with Section 34 IPC for the injuries or attempt to murder Radha (PW9) is sustained. Conviction u/s 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.

19. The appeal is accordingly partly allowed and the sentence u/s 302 read with Section 34 IPC is converted to one u/s 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 u/s 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 u/s 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. Copy of this order be sent to the Trial Court. The appeal is accordingly disposed of.