Azad @ Patiya v. State (Govt. of Nct) of Delhi & Anr

SANJIV KHANNA, J: Five appellantsPraveenKumar @ Pappu @ Puran Saxena, Sita Ram, Azad @ Patiya,Bhutnaand Mohd. Usman@ Churiimpugntheir conviction under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC, for short)for havingcommittedmurderof one Jaggi at about 10 P.M. on 12"' July, 2009, near JhuggiNo. A-93, JailerWala Bagh, Ashok Vihar, Phase-II, Delhi. The judgmentunder challenge dated 22'"' December,2012 arises from the charge-sheetfiled in FIR No.330/2009, police station Ashok Vihar.

¶2By order on sentencedated 12"' February,2013, the appellants have been sentenced to imprisonment for life for the offence under Section 302 read with Section 34 IPG. Fine of Rs.5,000/- each has been imposed. In defauh, the appellants have to undergo simple imprisonment for six months. Benefit of Section 428 of the Code of Criminal Procedure, 1973 has been granted.

¶3The primarychallengein these appeals is to the findings of the trial court acceptingthe eye witness accountgiven by Hari Ram Saroj

(PWl) and Lalmani Saroj (PW7), inter alia, on the ground that they had not seen the occun-encebut are planted and tutored eye witnesses. It is pleaded that since there is grave doubt and debate as to the place of actualoccurrenceand the investigationbeingfaultyand full of gaps, benefit of doubt should be given to the appellants. The appellants Praveen and Mohd. Usman have pleaded that the trial court has erred 4n relying upon the testimony of Hari Ram Saroj (PWl), recorded on 29'^^ April, 2010, for in his subsequentexaminationon 19^''November, 2010, this witness did not identify and implicate them. Lalmani Saroj

(PW7) also has not deposed about the involvement of Praveen and Mohd. Usman. On behalf of the appellant Mohd. Usman, it is pleaded that his name is not mentioned in the FIR (Ex.PW4/B), which was recorded on the basis of the statement made by Hari Ram Saroj (PWl) to the police.The appellantshave also pleadedthat the purportedthird eye-witness Angrahit Chaudhary (PW3) did not support the prosecutionversion. In the alternative,it is pleadedthat Section 34, IPC wouldnot be applicableas the appellantsdid not share a common intention and each of them could be individually held liable for the specificinjuriesattributedto them.

¶4The prosecufion,in the present case, primarilyrelies upon the eye-witness account given by Hari Ram Saroj (PWl) and Lalmani Saroj (PW7), brotherand father ofthe deceasedJaggi. PW-1, in his deposition recorded on 29"^ April, 2010, has averred that he was 3of20 runninga rationshop at JailerWala Bagh and his youngerbrother,the deceasedJaggi, used to work in his shop. On 12^^' July, 2009, when PWl along with Lalmani Saroj (PW7), Angrahit Chaudhary (PW3) and the deceasedJaggi, were presentin the shop, the five appellants, whom he correctlyidentifiedin the Court, came and started abusing them. Jaggi had protestedand enquiredfrom Praveenthe reason for such behaviour. Praveenhad then retortedand curtlystatedthat Jaggi claimedhimselfto be a socialreformer. Jaggipleadedthat he had not made any such claim. Praveen was having a sword, Sita Ram was having a meat cuttingknife, Bhutna was having an iron rod {saria), Usmanwas havinga double-edgedloiifeand Patiawas havinga knife. Bhutnagave a saria blow to Jaggi, who, in order to save himself,ran -away from the spot, but was chased and overpowerednear Jhuggi No.A-93, Jailer Wala Bagh. Hari Ram Saroj (PWl), Lalmani Saroj

(PW7) and Angrahit Chaudhary (PW3) followed them. The appellant Praveen hit the deceased Jaggi with a sword and others, namely, Sita Ram, Usman, Patia and Bhutna gave blows with knives and saria. Jaggi fell down and became unconscious. The appellants fled away from the spot. PW-1 claimed that he did not intervene to save his brother Jaggi since he was frightened. However, he had protested loudlyand peoplehad gatheredat the spot. Someonehad informedthe police, after which a PCR van reachedthe spot. Jaggi was rushed to SunderLai Jain Hospitalin the PCR van. Hari Ram Saroj (PWl) had accompaniedhim to the hospital. Jaggi was declared as 'dead' in the hospital. Thereafter,the SHO and other police officers came to the hospitaland statementofPWl markedEx.PWl/Awas recorded. PWl had thereupon accompanied the police officers to the place of occurrence,whichwas inspected. Bloodwas liftedfrom the spot with the help of cottonswabs. A blood-stainedstone lying at the spot was CRL.A,No. 579/2013+connected Page4 of20 chiseled and lifted. PWl testified that in Ex.PWl/A, he had inadvertentlyfailed to name Usman as he was shockedand frightened at that time. However, when the police came to the spot after about two hours, PWl had given the name of Usman in his supplementary statementdated 13^^^ July, 2009. PWl knew the five appellantsfrom beforeand muchpriorto the occurrence. PWl'sexamination-in-chief, as noticedabove,was recordedon 19'^April,2010. PWl was re-called and examined on November, 2010, i.e. after more than seven months. On the said date, in his examination-in-chief,PWl identified the sealed pulandas containingclothes of the deceased and various weapons of offence except the sword. The said sword was taken out from apulanda bearingthe seal of FSL. There was mud on the entire felade ofthe sword. In his cross-examination,PW-1 professedthat the accusedhad inflicted2-3 saria blows on public persons, who had tried to save his brother. PWl denied the suggestion that he had falsely implicated the appellant Usman in his supplementary statement. On his cross-examination by the counsel for the appellant Praveen, PW-1 accepted that he had signed his statement after going through its' contents. Thereafter, PW-1 professed that the police had pointed out towards the appellant Praveen when he had come to the Court for deposition on the last date of hearing. He did not have any business or other dealings and was not acquainted with the appellant Praveen, prior to the incident. Significantly, in the earlier portion of the cross-examination by the counsel for the appellant Praveen, PW-1 had stated that the appellantPraveenwas residingin the Sawan Park area, but he could not tell the exact location or house number. The distance between PW-l's house and Sawan Park was about one kilometer, but he had never visited the house of Praveen. He deposed that Praveen was also known as Pappu. He did not know the name of Praveen's fatherbutknewthathe belongedto eitherMainpurior Etah (U.P.). In ^ his re-examinationby the AdditionalPublicProsecutor,PW-1 deposed that he had not IcnownPraveenby face and had neverseenhim priorto the occurrence,in spite of being confrontedwith portion A to A of statement Ex.PWl/A, wherein it is recorded that Praveen was a criminaland was loiownto him veiywell sincepriorto the occurrence. He denied the suggestion that he was deposing falsely regarding identity of Praveen due to fear and pressure put up by the family membersofPraveenorthathehad beenwon overby them.

¶5In Ex.PWl/A, the substratumof the FIR, it is stated that PWl had known Praveen prior to the occurrence. PWl had certainly identifiedPraveenin his examination-in-chiefrecordedon 29^"' April, -SO10. Even in the initial portion of the cross-examination on 19^'' November,2010, PWl had mentionedthat he knew that the appellant Praveen was residing in Sawan Park and that he either belonged to Mainpuri or Etah. He denied the suggestion that the appellant Praveen had been implicated falsely at the instance of the police, yet in the re-examination by the Additional Public Prosecutor, PWl made a pretence that he did not know Praveen by face when confronted with Ex.PWl/A. PWl proclaimed that the police had pointed towards the appellantPraveenwhenhe had come to the Courtfor his deposition. It is pertinacious that Praveen's name is mentioned in Ex.PWl/A. Moreover, in his examination-in-chiefrecorded on 29'^ April, 2010, PW-1 had affirmedthat on 19^^ July, 2009, the policehad come to the place of occurrencealong with the appellants Praveen, Usman, Sita Ram and Patia and at that time, PWl, his father Lalmani Saroj (PW7) and Angrahit Chaudhary(PW3) were present and pointing out memos were prepared.

¶6In light of the aforesaid facts, we think that the part-deposition of Hari Ram Saroj (PW-1) i.e. a portion of his cross-examination on behalfof the appellantPraveen and re-examinationrecorded on 19^'^ November, 2010, should be treated as a false and incorrect testimony. We accept the prosecution version that Hari Ram Saroj (PW-1) had identified and referred to Praveen as one of the culprits in the Court as stated by him in his depositionrecordedon 29^'^ April, 2010 and also mentioned in his statement marked Ex.PWl/A. Another reason as to why we have accepted the said position is the factum that the name of the appellant Praveen is also mentioned in the rough site plan (EX.PW24/B),which was preparedon 13^^' July, 2009, by ACP Pratap Singh (PW24) on the basis of identification and pointing out by PWl. ^W24 has specificallydeposedthat afterthe FIR was registeredon 13^'^ July, 2009, at about 1.10 A.M., he along with PW-1, ATO Bahadur Singh and ASI Devraj had come to the spot and the site plan in question (Ex.PW24/B) was prepared at the instance of Hari Ram

(PWl). It is obvious that specific details of the culprits were revealed by Hari Ram Saroj (PWl), the complainant. The police, at that stage, had not conducted any enquiry and could not have ascertained and known the said details from another source.

¶7On the question of presence of PW-1 at the spot of occurrence, we accept the prosecution version for several reasons which are obvious and perceptible. Since the place of occurrence was PWl's shop and nearbyarea only, his presencewas naturaland normal. The descriptiongivenby PW-1 aboutthe occurrenceis lucidand elaborate. It bears a substantial ring of truth around it. Noticeably, PW-1 had accompaniedandtakenthe deceasedto the hospitalin the PGRvan.

¶8The presence of PWl stands affirmed by HC Ashok Kumar

(PW19). PW19 has statedthat on 12"''July, 2009, at about 10.30P.M., he had received a call from the Control Room regarding a quarrel and murder at Jailer Wala Bagh. PW19, along with his staff, reached Jhuggi No.A-93, Jailer Wala Bagh, where he found a person lying in a pool of blood in an injured condition. Family members of the injured were also present there. On inquiry, he came to know that the injured person was known as Jaggi. He wanted to take the injured to BJRM hospital, but Hari Ram Saroj (PW-1) had insisted that his injured brother should be taken to Sunder Lai Jain Hospital, Ashok Vihar, as BJRM hospital was located at a greater distance. Later on, PW19 came to know that the deceased Jaggi had succumbed to his injuries.

¶9The MLC (Ex.PWlO/A) proved by Dr. Alam (PWIO), records the name of the deceased as Jaggi s/o Lai Mani, age 25 years, resident ^f Jhuggi No. A-lOO, Jailer Wala Bagh, Ashok Vihar. The said MLC was prepared by Dr. Rakesh Kumar of Sunder Lai Jain Hospital. Dr. Alam (PW-10), CMO of the said hospital, had identified the signature and handwriting of Dr. Rakesh Kumar, who had left services of the hospital and whose whereabouts were unknown. The MLC was recordedon 12'^' July, 2009, at about 11 P.M. It is noticeablethat the FIR in question(Ex.PW4/B),was recordedat about 1.10 A.M. on 13'^' July, 2009, i.e. within abouttwo hours of the deceasedbeing admitted to the hospital. Importantly,the aforesaidfact not only finds mention in the FIR but was also proved by HC Lalu Ram (PW4), who had recorded the said FIR as well as the DD entry No.4A marked EX.PW4/C. By the said DD entry, intimation about recording of the FIR was sent to the senior police officers and the Ilaka Magistrate through Ct. Manoj (PWll). Subsequently, DD entry No.l2A was recorded and a copy of the FIR was sent to the Metropolitan Magistrate, Rohini Court. Page 8 of20

¶10Ct. Manoj (PWll) has stated that at about 2.15 A.M. on 13'^^ July, 2009, the duty officer gave him the FIR (Ex.PW4/B) and he delivered the same to ACP Ashok Vihar, DCP North-West and Joint CP/NR at their respective residences. Similarly, Ct. Bijender Singh

(PW14) has deposedthat at about 1A.M. on 13^^ July, 2009, the SHO had handed over the rukka to him for registration of the FIR at Police Station, Ashok Vihar. At about 2.15 A.M., he had collected a copy of the FIR (EX.PW4/B) from the duty officer, went to the spot of occurrence i.e. Jailer Wala Bagh and handed over the same to the 10.

¶11In these circumstances, we do not find any merit in the contention of the appellants that there was delay in recording of the FIR. In fact, the same was recorded promptly and in the most -expeditious manner. Similarly, the contention of the appellants predicated on the crime team report cannot be accepted. The said report marked Ex.PW13/A does mention the FIR number and also states that the deceased Jaggi was murdered, but does not mention the names of the accusedpersons. This, to our mind, is inconsequentialas thereis no specificcolumnregardingthe same in the prescribedform.

¶12SI Matadin Meena (PW-13), Incharge, Mobile Crime Team has testifiedthat on 13"' July, 2009, he had receiveda call from the SHO, Police Station, Ashok Vihar and had reached the place of occurrence i.e. Jhuggino.A-89,JailerWalaBagh,AshokVihar. Bloodwas spilled in front of the aforesaid jhuggi. Blood-stained human hair were also lying there. He had prepared the crime team report, Ex.PW13/A, whichrecordshis presenceat the spot from 1.35 A.M. to 2.15 A.M. on 13^^' July, 2009. (Contentionreferringto the jhuggi number has been discussed below).

¶13Lalmani Saroj (PW-7), father of the deceased, has identically deposed about the presence of the appellants Sita Ram, Patia and Page9 of 20 Bhutna as PW-1. The first two persons were armed with a knife and Bhutna was having a saria in his hand and when questioned, they started beating Jaggi claiming that he thinks himself to be too much. Jaggi had tried to save himself by running away but was chased. Jaggi had pleaded before them with folded hands but no mercy was shown. Jaggi, in order to save himself, entered the quarter of one Bhajan, which was located at a small distance but he was followed and given blows with knife and rod. Bhutna gave a saria blow on the head of Jaggi. The appellant Patia had slit the throat of Jaggi with a laiife. Jaggi fell down and became unconscious. Thereafter, the appellants and their associates fled away. Lalmani Saroj (PW-7) and Hari Ram Saroj (PW-1) had rushed Jaggi to Sunder Lai Jain Hospital, where the doctors declared him as 'dead'. Police came to the hospital and post mortem of the dead body of Jaggi was conducted. During his cross-examination by the Additional Public Prosecutor, PW7 has stated that he could not say whether Praveen, resident of Sawan Park and Usman @ Churi had come along with Sita Ram, Patia and Bhutna. He was confronted with his statement under Section 161 Cr.P.C. marked Mark. PW7/A, wherein names of Praveen and Usman @ Churi were mentioned. PW-7 denied having seen Praveen with a sword and Usman with a knife. He also denied the suggestion that Jaggi had questionedPraveenas to why he was abusinghim. PW-7 voluntarily stated that he had not seen Praveen. However, he accepted as correct the suggestion that Jaggi was caught and was given a saria blow by Bhutna and laiife blows by Sita Ram and Patia near Jhuggi No.A-93. He also accepted that they had shouted for help. Several suggestions attributable to specific acts by Praveen and Usman were denied. He even deniedthe suggestionthat on 19''^July, 2009, at about8P.M., the appellantsPraveen,Patia, Sita Ram and Usman had come to the spot CRL.A.No. 579/2013+connected Page 10of 20 with the pohce staff and had pointed out the place of occuiTence, inspite of being confronted with his statement Ex.PW7/B. PW7 did not identify the sword (Ex.PW20/T).

¶14Failure of Lalniani Saroj (PW7) to identify Praveen is clearly an afterthought. Testimony of PW-7, father of the deceased, was recorded on 11^^ March, 2011, i.e. nearly one year after the first depositionof Hari Ram Saroj (PW-1),whichwas recordedon 29^^ April,2010. PW7 has towed the line and tried to endorse PWl's testimony recorded on 19'^' November, 2010. We have already noted how PW-1 in his testimony recorded on 19'^ November, 2010, after initial hesitation, had tried to exonerate Praveen. We have rejected the said part of PWl's testimony. For the same reason, we would like to discard and .disbelieve PW7's version that he did not know Praveen and that neither was Praveen present at the spot of occurrence nor did he use a sword. The said portion of PW7's testimony is unbelievable and should not be accepted.

¶15However, the case against Usman is debatable and tenuous. Usman's name is not mentioned in the FIR Ex.PW4/B or in the rukka Ex.PWl/A. The FIR is descriptive and specifically names the four appellantsbut Usmanis not identifiedand named. The saidexhibitsdo not state or refer to another assailant, who could not be seen or was seen but not identified. The deceased Jaggi was chased and followed, with the assailants attacking and inflicting injuries. It is not a case where a large group of persons or a crowd of assailants had attacked. Ex.PWl/A specifically in numerical terais states that the assailants were four in number. As noticed above, an unsealed site plan was prepared after recording the FIR when Hari Ram Saroj (PWl) and ACP Pratap Singh (PW24)had visitedthe scene ofcrime on 13^'' July, 2009. The unsealed site plan gives details of the four appellants, Page 11 of20 namely, Praveen, Patia, Sita Ram and Bliutna, but does not mention or name Usman. It is noticeablethat in the police diary dated 13^'' July, 2009, it is recorded that immediately after preparation of the site plan, supplementary statement of Hari Ram Saroj (PWl) was recorded, in which he had given the name of Usman. This does not appear to be correct, for the name of Usman would have then found mention in the unsealed site plan. In fact, one would expect that the supplementary statement under Section 161 CrPC, should have been recorded earher. This would have been natural. Thus, it is apparent and lucid that the name of Usman as the fifth perpetrator was introduced later.

¶16The First Infomiation Report is vivid and descriptive. It does not reflect an element of hesitation or ambivalence on the part of Hari Ram Saroj (PWl). In his statement, Hari Ram Saroj (PWl) has stated that he was residing at A-103, Jailerwala Bagh, Ashok Vihar, Phase 2, Delhi and was also running a ration shop from there. He had two elder brothers and a younger brother named Jaggi who had a kabari shop. At about 10 P.M. on the date of incidenti.e. 12^'' July, 2009, he, his father, Angrahit Chaudhary and his brother Jaggi were present at the shop and at that time, one Pappu (Praveen),a residentof Sawan Park, whom he knew, came there with Sita Ram, Bhutna and Patiya and started abusing Jaggi. He and his father tried to persuade Praveenand other appellants not to abuse but they continued hurling abuses. Praveen had a sword, Sita Ram was having a knife, Bhutna was having as saria, Patia was having a rod and all of them started beating Jaggi. Jaggi ran to save himself and his father and Angrahit Chaudhary pleaded for mercy to spare Jaggi. They started chasing him and assaulted him near Jhuggi No. A-93, Jailer Wala Bagh. Praveen had attacked with a sword on the head of Jaggi and on his instigation, Sita Ram, Bhutna and Patiya had also inflicted injuries with the rod and Page 12 of20 Icnives. Jaggi fell down and became unconscious. The complainant ^ raised an alarm and people gathered at the spot. Thereupon, the perpetrators fled away from the spot. On receipt of the infomation, a PCR van reached the spot and his brother Jaggi was removed to Sunder Lai Jain Hospital, where he was declared as 'brought dead'.

¶17We accept and agree that every omission or absence of name of an accused in the FIR would not necessarily result in acquittal. However, the Court must examine absence of name of a known person in the FIR with caution and care to rule out false indictment. Each case must be examined on its own strength and weaknesses in view of the factual matrix. In the present case, doubt and debate as to involvement of Usman remains unresolved and a question mark. J[8. On this aspect, we would also rely upon the testimony of Lalmani Saroj (PW7) who has not implicated or named Mohd. Usman as one of the perpetrators. We are conscious and aware that Lalmani Saroj (PW7) has also not named Praveen as the perpetrator but on the said aspect, we have referred to the examination-in-chiefof Hari Ram Saroj (PWl) recordedon 29*^' April, 2010 and the subsequentchanged assertion by PWl in his examination recorded in November, 2010. The presence of Mohd. Usman at the spot, therefore, appears to be doubtful and debatable, and accordingly, we feel that Mohd. Usman should be given the benefit of doubt.

¶19Learned counsel for the appellants Praveen, Sita Ram, Bhutna and Patiyahave also referredto the scaledsite plan (Ex. PW5/A) and the cross-examination of Lalmani Saroj (PW7) with reference to the place of occuiTence. The scaledsite plan (Ex. PW5/A) was prepared on 20"' August, 2009 after the police visitedthe site on 19^^' August, 2009. We wouldpreferto rely upon the unsealedsite plan markedEx. PW24/B, which was prepared on 13^'^ July, 2009, at the instance of Page 13 of20 Hari Ram Saroj (PWl). The said site plan specifiesthe locationofthe ^ Jhuggi Nos. A-93 and A-53. Jhuggi No. A-53 is mentioned as the place where the appellants Praveen, Sita Ram, Bhutna and Patiya had started the quarrel with Jaggi. It indicates point 'A' in front of Jhuggi No. A-93 was the place where the four of them had assaulted Jaggi with a sword, iron rod and knives and where blood of the deceased had spilled.

¶20The MLC (Ex. PWIO/A) records the address of the patient/ deceased Jaggi as Jhuggi No. A-100, Jailer Wala Bagh, Ashok Vihar. As per depositions of Hari Ram Saroj (PWl) and Lalmani Saroj

(PW7), Jaggi was a resident of A-103, Jailer Wala Bagh, Ashok Vihar, where the two deponents also resided. It is apparent that the Jhuggi jiumber mentioned in the MLC (Ex. PWIO/A) is wrong. The two witnesses Hari Ram Saroj (PWl) and Lalmani Saroj (PW7) were subjected to cross-examination and asked questions regarding Jhuggi number A-100, but they did not affirm and accept the suggestions. On the question of place of offence, our attention was also drawn to the crime team report (Ex. PW13/A), wherein the place of offence is mentioned as Jhuggi No. A-89 outside Jailer Wala Bagh in the interveningnight of 12"' & 13'^' July, 2009. Referringto the two site plans marked Ex.PW5/A and Ex.PW24/B, scaled and unsealed respectively, it was highlighted that in the unsealed site plan (EX.PW24/B),JhuggiNo. A-53 has been shown at the end in the right hand comer, whereas in the scaled plan (Ex. PW5/A), the last Jhuggi at the end of the road is numbered A-103. The said Jhuggi, as per the prosecutionversion and the depositionof Hari Ram Saroj (PWl) and Lalmani Saroj (PW7), was the residenceand shop of Hari Ram Saroj

(PWl) and the residence of the deceased. On the said aspect, our attention was drawn to the oral statement of Hari Ram Saroj (PWl) CRL.A.No. 579/2013+connected Page 14 of20 and Lalmani Saroj (PW7) that the occuiTence had started in front of Jhuggi number A-53 and the fatal injuries were caused in front of Jhuggi number A-93.

¶21We have examined the said contentions in some depth as there is some discrepancy. However, on a careful scrutiny and in-depth examination, we have no hesitation in accepting the testimony of Hari Ram Saroj (PWl) and Lalmani Saroj (PW7) that fatal blows were inflicted in front of Jhuggi number A-93. This is the place from where blood-stained earth was recovered. Ct. Bijender Singh (PWl4), HC Ashok Kumar

(PWl9) and the photographer HC Jagdish Kumar

(PWl5) have all referred to the said Jhuggi. Angrahit Chaudhary

(PW3), whose presence is deposed to by Hari Ram Saroj (PWl) and Lalmani Saroj (PW7) as an eye-witness, did not substantially support the prosecution case, but he has accepted that he had seen the deceased Jaggi lying unconscious with injuries on his body near Jhuggi No. A-

¶93Jaggi was then surrounded by a lot of persons and someone had called the police. Jaggi was rushed to Sunder Lai Jain Hospital and was declared brought dead. Angrahit Chaudhary (PW3) professed that he did not know the names of the culprits. In his cross-examination, PW3 acknowledged that the deceased Jaggi was moved to Sunder Lai Jain Hospital and that he had also visited the said hospital. Daya Shankar (PW8), another neighbour of the deceased, has affirmed the location where the incident had taken place. He has deposed that at about 7.30 PM, when he was having dinner at his residence i.e. A-79, Jailer Wala Bagh, he heard the noise and came out. From his telephone,a call was made to the police and he had seen the deceased Jaggi in an injured condition.

¶22Scaled site plan (Ex. PW5/A) was preparedby SI ManoharLai

(PW5) after visitingthe spot on 19^^' August,2009. PW5 claimedthat Page 15 of20 the said site plan was preparedon the pointingout ofthe complainant 3 and afterpreparationofthe draftnotes and measurement. Theserough notes and measurements,PW5 asserted,were destroyedafter the site plan was prepared. There is a lapse as in the scaled site plan (Ex. PW5/A), as Jhuggi No. A-53 is not shown and indicated. We would, therefore, prefer to rely upon the unsealed site plan (Ex.PW24/B) whichwas preparedat the spot itselfimmediatelyafterthe incidenton 13^^July, 2009. Whileexaminingthe contentionsraised,we cannotbe obliviousand must takejudicialnoticeof the fact that the incidenthad takenplace in ajhuggiclusterwhere numbersare given as a matterof convenience. The tenements were very small as is clear from the testimonyof Hari Ram Saroj (PWl) and Lalmani Saroj (PW7) who ^have statedthatjhuggiswere buih in an area of 10x10 sq. ft., and the distancebetweentheirjhuggiandjhuggino. A-93 was 8 to 10 jhuggis. We thinkthe jhugginumber,by itself,cannotbe a groundto disregard and negate the oral testimony of Hari Ram Saroj (PWl) and Lalmani Saroj (PW7). The contentions, on this account, have to be rejected. We would not give undue importance to the jhuggi numbers in the given facts of the present case. We should concentrate and focus on the core testimony of the eye witnesses Hari Ram Saroj (PW-1) and Lalmani Saroj (PW-7), and whether their version is corroborated by attending circumstances and evidence.

¶23Ethyl alcohol was found in the blood sample of the deceased Jaggi as per the FSL Report Ex.PW17/A. However, this would not dilute or negate the prosecution case. It would not be correct to disbelieve the ocular testimonies of Hari Ram Saroj (PWl) and Lalmani Saroj (PW7) as to the factumthat the four appellants,namely Patia, Sita Ram, Praveen and Bhutna were the perpetrators of the offence in question. There is nothing to suggest that the deceased Jaggihad sufferedinjuriesdue to an accidentalfall as he was dmnlcor ^3^ there was graveand suddenprovocation.

¶24Section 34 IPG refers to common intention and incoiporates principle of vicarious liability when an accused shares the cominon intention with the actual perpetratorof the crime. The two essential requirements of Section 34 are (1) common intention; and (2) participation of the accused in the commission of the offence. The common intentioncan be a result of a premeditateddecisionbetween two or more accused, or in a given case, common intention can develop at the spur of the moment at the scene of crime. Section 34 IPG, which enacts principle of joint liability for the commissionof an offence, importantly, does not refer to 'common intention of all' or the intention common to all'. Gommon intention has to be infeiTed as direct evidence of common intention is seldom available. Nevertheless, the appellants' Praveen, Sita Ram, Bhutna and Patiya have pleaded lack of common contention, relying upon the following elucidation in Virender Singh V5. State ofM.P. 2010 (8) SGG 407:- "57. Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possibleto prove exactly what part was played by each of them. In the absence of common intention, the criminal liabilityof a memberof the group might differ accordingto the mode of the individual's participation in the act. Common intention means that each member of the group is aware of the act to be committed."

¶25We are afraid that the appellants are reading the aforesaid quotationout of context. The above quotationdoes not support the plearaisedby the appellants. In orderto appreciatethe said quotation, we wouldlike to refer to two earlierparagraphs,namelyparagraphs42 and 56 of the same decision which read as under: Page 17 of20 (• "42. Section34 IPG does not create any distinctoffence,but it lays down the principleofconstructiveliability.Section34 IPG stipulates that the act must have been done in furtheranceofthe common intention,ha order to incurjoint liabilityfor an offence,theremustbe apre-aiTangedplanand a pre-meditatedconcert between the accused persons, for doingthe act actuallydone, thoughtheremightnot be along intervalbetweenthe act and the pre-meditationand though the plan may be formed suddenly. In order that Section34 IPG may apply, it is not necessarythat the prosecutionmust prove that the act was done by a particularor a specified person. In fact, the section is intended to cover a case where a numberofpersonsact togetherand on the facts ofthe case, it is not possiblefor the prosecutionto prove as to which of the personswho actedtogetheractuallycommittedthe crime. Littleorno distinctionexistsbetweena chargefor anoffence under a particularsection and a charge under that section read with Section 34. XXX

¶56Section 34 can be invoked even in those cases where some of the co-accusedmaybe acquitted,providedit canbe proved either by direct evidence or inference that the accused and the others have committedan offence in pursuanceof the common intentionof the group. (Vide Prabhu Babaji Navle V. State ofBombay[AIR 1956 SG 51]."

¶26The argument that each of the perpetrators should be punished without resort to Section 34 IPC, for the injuries caused by them individually, negates and is anti-thesis to the spirit and purpose of Section IPC. It is not necessary that the persons charged, adjudicated and held guilty of committing an offence with common intention must have acted identically or in the same manner. Acts may be different but must be actuated by the same common intention. Paragraph57 in VirendraSingh's case (supra) quoted above exposits this aspect of Section 34 IPC, while noticing the generalprincipleof criminal law that an accused is liable only for the act which he has done. Section 34 IPC, is enacted to meet a situation in which it is difficult to distinguish individualacts of members of a group who have acted in furtherance of common intention; or the necessity to prove exactly what role was played by each one of them (see Sripathi vs. CRL.A, No. 579/2013+connected State ofKarnataka2009 (11) SCC 660; State ofAndhm Pradesh 1993 supple3 SCC 134).

¶27In GirijaShankarV5. State of U.P. 2004 (3) SCC 793, it has been held that the principleofjoint Habilityunder Section34 IPC is only a rule of evidenceand does not create a substantiveoffence. It makes a personliable for an offencecommittedby another,in course ofa criminalact perpetratedby severalpersons,who in furtheranceof the commonintention,havejoinedin committingan offence. Aperson may participateand be engaged in a criminal act in differentways. Evenapersonnot doing any particularact but only standingto prevent any prospectiveaid to the victim, may be guilty of committingthe principal offence since he shares the common intention with the principalperpetrator.When we turn to the facts ofthe presentcase, we * have referredto the depositionof Hari Ram Saroj (PWl) and Lalmani Saroj (PW7). The appellantsPraveen, Sita Ram, Bhutna and Patiya had come armed with a sword, saria and knives. Abuses were hurled on Jaggi and when attacked, Jaggi tried to flee. Hari Ram Saroj (PWl) and Lalmani Saroj (PW7) had pleaded but the appellants followed and chased Jaggi and assaulted him and inflicted fatal injuries. Thus, Section 34 IPC has been rightly invoked and apphed.

¶28At this stage, it would be relevant to refer to the post mortem reportof Jaggi (Ex.PW6/A)which was provedby Dr. K. Goel (PW6). The report mentions and recordsthe following injuries: External injuries:

¶1Lacerated wound 7 x 1 cms over right parietal and part of left parietal regions with crushed and contused margins.

¶2Lacerated wounds 3 x 0.75 cms over right occipital region with contused and crushed margins.

¶3Lacerated wound 5 x L25 cms over right temporal and mastoid region with crushed and contused margins. Depressed deformity seen all over underneath the above three injuries.

¶4Incised wounds -5x2 cms over top of right shoulder with tailing 0.5 cm long at anteriorend, muscledeep and 6 x 2.5 cms muscledeep over upperlateralaspectofrightarm withtailing1.5 cms at lowerend. Page 19of 20

¶5Three transverse incised wonds of sizes 13 cms, 11 cms and 8 cms over back of chest about 6 cms and 4 cms apart each other respectively.

¶6Compound fracture left tibia and fibula at upper middle 1/3 with laceration 1.5 x 0.5 cms with caished margins and rail-road pattern. Internal examination;

¶1There were subscalp bruises, crushing and haemotoma all over right parietotemporal occipital and medial part of left parital area.

¶2Depressed communitted fractures of right temporal bone into pieces.

¶3Depressed fractures right parital bone in area 6 x 2.5 cms.

¶4Brain matter was lacerated at right temporal lobe with contusions all over right parietotemporo occipital lobes.

¶5Diffused subarchanoid hemorrhage all over right hemisphere. Opinion: The cause of death was extensive craniocerebral injuries. Manner of death was homicidal. Craniocerebral injuries were sufficient to cause death in ordinary course of nature.

¶29The photographs of the spot marked Ex. PW16/A1 to A5 indicate that Jaggi had bleeded profusely and the blood had spilled over at the ground and the walls. '30. In view of the aforesaid discussion, the appeals preferred by Praveen Kumar, Sita Ram, Azad @ Patiya and Bhutna are dismissed and their conviction and sentences are sustained. Appeal filed by Mohd. Usman is allowed and his conviction and sentence are set aside. Mohd. Usman will be released, unless he is required to be detained in accordance with law, in any other case.

¶30The appeals are accordinglydisposed of July 14, 2015 NA/VKR/kkb -sd- (SAN JIV KHANNA) JUDGE -sd- (ASHUTOSH KUMAR) JUDGE TRUE 'EXAfv^lME^

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 614/2013 Reserved on: May, 2015 DateofDecision: 14**^July,2015 I ^ MOHD USMAN ALIAS CHURI Through: Mr.K.Singhal, Advocate. Mr.Tanveer Khan, Advocate. Appellant STATE BHUTN STATE versus STATE NCT OF DELHI Respondent Through: Ms. Aashaa Tiwari, APP along with SI Umesh Rana, P.S.Ashok Vihar, North West District. CRL.A. 650/2013 SITARAM Appellant Through: Mr. Ravindra S Garia & Mr. S.S. Rawat, Advocates. versus 30VT OF NCT OF DELHI Respondent Through: Ms. AashaaTiwari,APP along with SI Umesh Rana, P.S.Ashok Vihar, North West District. X CRL.A. 938/2013 A Appellant Through: Mr. Chetan Anand, Advocate. versus GOVT OF NCT) OF DELHIANDANR. ... Respondents Through: Ms. Aashaa Tiwari, APP along with ' SI UmeshRana,P.S.AshokVihar,NorthWest ' District. j I CRL.A. 983/2013 AZAD ALIAS PATIYA Appellant iThrough: Mr. K. Singhal, Advocate. I versus i STATE (GOyT OF NCT) OF DELHI AND ANR.. Respondents pThrough: Ms. AashaaTiwari,APP alongwith I SI UmeshRana,P.S.AshokVihar,NorthWest District. ! CORAM: HON'BLEkR. JUSTICESANJIVKHANNA HON'BLE MR. JUSTICE ASHUTOSH KUMAR I SANJIV KHANNA. J; For 4etailed order,' see Criminal Appeal No. 579/2013, titled Praveen Kumar Alias Pappu Alias Puran Saxena versus State, pronounced today. July 14,2015 VKR ! (SANJIV KHANNA) JUDGE (ASHUTOSH KUMAR) JUDGE IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A.NQ. 579/2013 Reservedon: 7^'' May, 2015 % Date ofDecision: 14"' July, 2015 PRAVEEN KUMAR ALIAS PAPPU ALIAS PURAN SAXENA Appellant Through: Ms. Anita Abraham, Advocate. versus STATE Respondent Through: Ms. Aashaa Tiwari, APP along with SI Umesh Rana, P.S.Ashok Vihar, North West District. CRL.A. 614/2013 MOHD USMAN ALIAS CHURI Appellant Through: Mr.K.Singhal, Advocate. Mr.Tanveer Khan, Advocate. versus STATE NCT OF DELHI Respondent Through: Ms. AashaaTiwari,APP alongwith SI Umesh Rana, P.S.Ashok Vihar, North West District. CRL.A. 650/2013 SITA RAM Appellant Through: Mr. RavindraS Garia& Mr. S.S. Rawat, Advocates. versus STATE GOVT OF NCT OF DELHI Respondent Through: Ms. AashaaTiwari,APP alongwith SI Umesh Rana, P.S.Ashok Vihar, North West District. Page 1 of20 CRL.A. 938/2013 BHUTNA Appellant Through: Mr. Chetan Anand, Advocate. versus STATE(GOVTOF NCT) OF DELHIAND ANR. ... Respondents Through: Ms. AashaaTiwari,APP alongwith SI Umesh Rana, P.S.Ashok Vihar, North West District. CRL.A. 983/2013 AZAD ALIAS PATIYA Appellant Through: Mr. K. Singhal, Advocate. versus STATE(GOVT OF NCT) OF DELHIAND ANR.. Respondents Through: Ms. Aashaa Tiwari, APP along with SI Umesh Rana, P.S.Ashok Vihar, North West District. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE ASHUTOSH KUMAR