RAMESH ALIAS DAPINDER SINGH versus STATE OF HIMACHAL PRADESH on 22 March 2021

SUPREME COURT REPORTS

[2021] 2 S.C.R.

RAMESH ALIAS DAPINDER SINGH

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v.

STATE OF HIMACHAL PRADESH

(Criminal Appeal No. 347 of 2021)

BMARCH 22, 2021

[UDAY UMESH LALIT AND K.M. JOSEPH, JJ.]

Penal Code, 1860 – ss.302, 323 and 324 r/w 34 – Murderconsequent to armed assault – Common intention – Vicarious liability– Three accused – ‘S’ and ‘N’, maternal uncles of PW1 (informant),Cwere the principal accused – Accused-appellant was their driver –‘N’ allegedly nursed ill-will against PW1 – PW1 had visited residenceof his maternal grandmother alongwith his friends – ‘S’ and ‘N’,who were present there, abused PW1 and his friends leading to aquarrel and scuffle – PW1 and his friends hurriedly left the spotbut stopped near a school – ‘S’ and ‘N’ accompanied by appellant,Dcame there on a motorcycle and started assaulting PW1 and hisfriends – ‘S’ had a danda and ‘N’ had a sickle (darat) – PW1 andone of his friends received injuries and ran away – The other frienddied – Trial court convicted all the three accused – Convictionaffirmed by High Court – Whether appellant could be said to beEguilty with the aid of s.34 IPC – Held: Ocular testimony in supportof the prosecution was only by way of the testimony of PW1 – PW1did not attribute any specific overt act to the appellant insofarassault on the deceased was concerned; nor was the appellant statedto be armed with any weapon – It was not even the case that theappellant had exhorted or had facilitated, in any manner, the assaultFon the deceased – The only attribution to the appellant was regardingcommon or collective act where “three persons got down from themotorcycle and started assaulting with Danda and fist blows” –Appellant was also not attributed presence and participation in thequarrel or scuffle between PW1, and ‘S’ and ‘N’ – No certainty thatGthe appellant shared the common intention with ‘S’ and ‘N’ to committhe murder of the deceased or that the appellant had done something‘in furtherance’ of the common intention of all – Benefit of doubtgranted to appellant and he is absolved of the liability u/s.34 IPCinsofar as the charges u/ss.302 and 324 IPC are concerned – Heis, however, found guilty of the offence punishable u/s.323 r/w s.34HIPC.

Penal Code, 1860 – s.34 – Principle of vicarious liabilityunder – Outlined.

Partly allowing the appeal, the Court

HELD: 1.1. The principle of vicarious liability under Section34 of the IPC states, “when a criminal act is done by severalpersons in furtherance of the common intention of all”, each ofthose persons would be liable for ‘that act’ in the same manneras if it were done by him alone. [Para 13][902-D-E]

1.2. In the facts and circumstances of this case, first andforemost, the ocular testimony in support of the prosecution isonly by way of the testimony of PW1. That witness did not attributeany specific overt act to the appellant insofar assault on thedeceased was concerned; nor was the appellant stated to be armedwith any weapon. It was not even the case that the appellant hadexhorted or had facilitated, in any manner, the assault on thedeceased. The only attribution to the appellant was regardingcommon or collective act where “three persons got down fromthe motorcycle and started assaulting with Danda and fist blows”.[Para 13][902-E-F]

1.3. Going by the narration of PW1, ‘S’ and ‘N’ had abusedhim and his friends at the residence of his maternal uncle leadingto a quarrel and scuffle. The appellant was not attributed presenceand participation in such quarrel or scuffle. [Para 14][902-F-G]

1.4. Having considered the entire material on record, itcannot be said with certainty that the appellant shared the commonintention with ‘S’ and ‘N’ to commit the murder of the deceasedor that the appellant had done something ‘in furtherance’ of thecommon intention of all. Giving him benefit of doubt, he is absolvedof the liability under Section 34 of IPC insofar as the chargesunder Sections 302 and 324 of IPC are concerned. He is, however,found guilty of the offence punishable under Section 323 readwith Section 34 of IPC. [Para 16][904-D-F]

Dharam Pal and others v. State of Haryana (1978) 4SCC 440; Vithal Laxman Chalawadi and others v. Stateof Karnataka (2010) 14 SCC 739 : [2010] 12 SCR

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A574; and Bishu Sarkarand others v State of West Bengal(2017) 11 SCC 105 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.347 of 2021

From the Judgment and Order dated 09.09.2016 of the High CourtCof Himachal Pradesh at Shimla in CRA No.267 of 2016.

Pradeep Kumar Dey, Ms. Shilpi Dey Auditya, Ms. ShreyasiChakrabarty, Ms. Shehla Chaudhary, M. Anas Chaudhary, Sumit KumarSharma, Ansar Ahmad Chaudhary, Advs. for the Appellant.

DAbhimanyu Jhamba, Ms. Thonpinao Thangal, Rishabh Saxena,Ashish Jhamb, Samir Ali Khan, Advs. for the Respondent.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.E1. Delay condoned. Leave granted.2. This appeal challenges the judgment and order dated 09.09.2016passed by the High Court of Himachal Pradesh at Shimla in CriminalAppeal No. 267 of 2016.

3. The appellant – original accused No.3 was tried along with twoFothers in Sessions Trial No. 40 of 2014 on the file of Additional SessionsJudge (II), Una, Himachal Pradesh, in respect of offences punishableunder Sections 302, 323, 324 read with Section 34 of the Indian PenalCode, 1860 (‘the IPC’, for short).

4. The basic facts leading to the aforementioned Trial, as statedGby PW1-Sukhwinder Singh, the original informant, were as under:- “…In November 2013, I had taken away Puja Devi daughter ofSatnam Singh, resident of Dangoli, Tehsil and Distt. Una, and hadsubsequently married her. The accused Nirmal Singh is mymaternal uncle, and the aforesaid Puja Devi is his sister-in-lawH(Saali). On this count, my maternal uncle Nirmal Singh nursed an

ill-will against me. I had come home to Pubowal from Baddi on16.03.2014. I had met my friends Kulwinder alias Babbi and DaljitSingh alias Deepu on 18.03.2014 at Pubowal at about 8.00 p.m.On my request, they accompanied me to house of my maternalgrandmother at Baliwal. We travelled to the said place bymotorcycle bearing registration No. PB.08-BL-1390, belongingto Babbi. We reached my maternal home at about 8.30 p.m. Inmy maternal home, my grandmother and both my maternal uncles,Sadhu Singh and Nirmal Singh were present. On reaching thehouse we paid respect to my grandmother and uncles by touchingfeet etc. But my uncles started abusing me and quarrelling withme. During the scuffle, the shirt of Babbi was torn. Thereupon,we hurriedly left the spot on the motorcycle, which was beingdriven by Daljit Singh. When we had reached near the High School,Kulwinder Singh alias Babbi stated that he had dropped his pursesomewhere. We began looking for the purse, after getting downfrom the motorcycle. Suddenly both my maternal uncles, SadhuSingh and Nirmal Singh, along with their driver namely RameshKumar, 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 personsgot down from the motorcycle and started assaulting us with Dandaand fist blows etc. My uncle Sadhu Singh had a Danda, whereasmy uncle Nirmal Singh had a sickle (Darat) in his hand. He gaveme 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, andthereafter gave another blow to Daljit Singh on his neck.Thereupon, I ran and hid myself behind a bush. From there I sawmy uncles Sadhu Singh and Nirmal Singh administering blows tomy friends, Babbi and Daljit. On seeing this, I ran away further.Thereafter, Babbi also ran away from the spot. The DriverRamesh, thereafter ran away from the spot and started raising acry, 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 Singhlying on the ground. I stated to the police about the incident. Thepolice recorded my statement, Ext. PW1/A. I have seen thestatement, which bears my signatures, which I had appended afterthe contents of the statement were read over and explained to me AB

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Aby the police. My friend Daljit Singh was murdered. The policecarried out the investigation on the spot. …”

5. Kulwinder Singh alias Babbi, whose presence was referred toby PW1-Sukhwinder Singh, was examined as PW7. But this witness didnot support the prosecution and was declared hostile. It was asserted bythis witness as under:-B

“…It is incorrect that on my intervening, I was given a stick blowby Sadhu Singh, which landed on my back, and I was given fistand kick blows by Ramesh due to which I sustained injuries. Selfstated that our altercation was with some other persons. It isincorrect that Sadhu Singh caught me and in the process we fellCon the rough surface on the spot. I cannot say whether DaljitSingh and Sukhwinder were given Darat blows by Harjinder Singhalias Nimma, and Daljit Singh received injuries on his neck andarm. It is correct that Sukhwinder had sustained injury on hisarm. However, I cannot say what was the reason from the same.DI did not see any injuries on the person of Daljit Singh andSukhwinder Singh, on the spot. It is correct that there was amplemoonlight 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 accompaniedEthe deceased, were not quite consistent. PW15-Dr. G. S. Didhra deposedabout the injuries suffered by PWs 1 and 7. Injuries of PW1 were:- “1. Clean incised wound on left middle finger distal to interpnallyngeal joint.

2. Sickle shape clean incised wound on left middle phallynx orFring finger.”

Further, following injuries were found on the person of PW7:-“1. Clean impact contusion over left shaft of humerous. 3 cmlong.

2. Impact contusion below left angle of scapula measuring 3.5 xG0.5 cms.

3. Impact contusion about right supra scapular region measuring4 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 2x3Hcms.

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 onthe body of the deceased, deposed about the injuries of the deceased asunder:- “(i) Clean incised measuring 3-1/2” x 1-1/2" x 4" and on the leftside, margin sharp extending below the angle of mandible to thewhole of ear lobe with cut through injury to the carotid artery andjugular vessels with cut through injury to all the neck muscle andfascia and tissue with fracture mandible (angle).

(ii) Clean incised wound measuring 2x1" x bone depth with fractureof metacarpal bones on the right wrist.

All the above injuries were found to be ante mortem in nature. Inmy opinion he died due to haemorrhagic shock due to injuries tothe left carotid and jugular vessels.

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I have seen the darat Ex. S1. The injuries of the kind mentionedabove are possible by the said weapon/implement. My writtenopinion regarding the injuries being possible by the weapon shownto me is in red circle Ext.PW27/C.”

8. Considering the eyewitness account, the Trial Court by its orderdated 07.04.2016 convicted all three accused under Section 302 readwith 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 undergolife imprisonment under the first count and sentences of rigorousimprisonment of one year and three years on the second count and thirdcount respectively, in addition to imposition of fine and default sentence.

9. The convicted accused approached the High Court by filingCriminal Appeal No. 267 of 2016, which was dismissed by the HighCourt by its judgment and order dated 09.09.2016.

10. It must be stated that the order passed by the High Courtaffirming the conviction and sentence, was accepted by accused NirmalSingh and no further challenge was raised. However, accused SadhuSingh preferred Special Leave Petition (Crl.) No. 1817 of 2019, whichwas dismissed by this Court on 10.07.2019.

11. Appearing in support of the appeal, Mr. P.K. Dey, learnedadvocate submitted that the appellant was neither armed with any Lathi A

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Aor Danda nor was there any assertion from PW1-Sukhwinder Singhattributing any specific overt act to the appellant. On the other hand,such specific overt acts were attributed to accused Sadhu Singh andNirmal Singh. Mr. Dey also stressed the fact that the appellant had runaway from the spot and had raised a cry, upon which many peoplegathered at the spot. It was, therefore, submitted by Mr. Dey that theBappellant could not be said to be guilty with the aid of Section 34 of theIPC.

12. Mr. Abhimanyu Jhamba, learned Advocate appearing for theState, however, relied upon the facts that the appellant had come alongwith accused Sadhu Singh and Nirmal Singh who were separately armedCwith Danda and Sickle; and that the appellant had given fist and kickblows. In the submission of the learned counsel, these facts pointedtowards active participation on part of the appellant and, therefore, thecourts below had rightly found him guilty with the aid of Section 34 ofthe IPC.

D13. The principle of vicarious liability under Section 34 of the IPCstates, “when a criminal act is done by several persons in furtheranceof the common intention of all”, each of those persons would be liablefor ‘that act’ in the same manner as if it were done by him alone.

First and foremost, the ocular testimony in support of theprosecution is only by way of the testimony of PW1. That witness didEnot attribute any specific overt act to the appellant insofar assault on thedeceased was concerned; nor was the appellant stated to be armed withany weapon. It was not even the case that the appellant had exhorted orhad facilitated, in any manner, the assault on the deceased. The onlyattribution to the appellant was regarding common or collective act whereF“three persons got down from the motorcycle and started assaultingwith Danda and fist blows”.

14. Going by the narration of PW1, accused Sadhu Singh andNirmal Singh had abused him and his friends at the residence of hismaternal uncle leading to a quarrel and scuffle. The appellant was notGattributed presence and participation in such quarrel or scuffle.

15. In a situation where the overt acts were attributed to principalaccused and not to a person accompanying such principal accused, theobservations in some of the cases decided by this Court are:- a)Dharam Pal and others v. State of Haryana[1]

“15. A criminal court fastening vicarious liability must satisfyitself as to the prior meeting of the minds of the principalculprit and his companions who are sought to beconstructively made liable in respect of every act committedby the former. There is no law to our knowledge whichlays down that a person accompanying the principal culpritshares his intention in respect of every act which the lattermight eventually commit. The existence or otherwise ofthe common intention depends upon the facts andcircumstances of each case. The intention of the principaloffender and his companions to deal with any person whomight intervene to stop the quarrel must be apparent fromthe conduct of the persons accompanying the principal culpritor some other clear and cogent incriminating piece ofevidence. In the absence of such material, the companionor companions cannot justifiably be held guilty for everyoffence committed by the principal offender. …”

b)Vithal Laxman Chalawadi and others v. State of Karnataka[2]

b)Vithal Laxman Chalawadi and others v. State of Karnataka[2]

“15. As regards the role of appellant Gangappa, theevidence on record suggests that he gave a chappal-blowto PW 6, the mother of the deceased Ramesh. There is noother overt act attributed to Appellant 3-accused whoappears to have joined the melee when tempers ran high.The allegation that he exhorted Accused 1 and 2 to kill thedeceased has not in our opinion been satisfactorily provedto justify his conviction for murder with the help of Section34 IPC.

16. The nature of the evidence on record and the role thatappellant Gangappa is alleged to have played, does not, inour opinion, establish that Appellant 3 shared the commonintention with Nijappa and Vithal to commit the murder ofdeceased Ramesh. The conviction of Appellant 3-accusedfor the offence of murder punishable under Section 302IPC read with Section 34 IPC is, therefore, not sustainable.The evidence, however, proves beyond a reasonable doubtthat the appellant, Gangappa assaulted PW 6 Putalavva with 1 (1978) 4 SCC 440

2 (2010) 14 SCC 739

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a chappal. His conviction under Section 323 IPC by thetrial court and the High Court deserves to be affirmed.”

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c) `Bishu Sarkar and others v. State of West Bengal[3]

“7. … The allegations coming from all the witnesses areconsistent that none of the present appellants had dealt anyblow by any weapon and all that they did was to participatein the scuffle. It is true that PWs 2 and 5 assert that thepresent appellants had caught hold of Raju Bose. But it isnot clear from the record whether such act was so intendedto enable Accused 1 to deal the fatal blow. Further, PW 3 iscompletely silent on this aspect.

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8. In the circumstances we deem it appropriate to grantbenefit of doubt to the present appellants and acquit themof the charge under Section 302 read with Section 34 IPC.This appeal is thus allowed and the conviction and sentencerecorded against the present appellants is set aside. ...”

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16. Having considered the entire material on record, in our view,it cannot be said with certainty that the appellant shared the commonintention with accused Sadhu Singh and Nirmal Singh to commit themurder of the deceased or that the appellant had done something ‘infurtherance’ of the common intention of all. Giving him benefit of doubt,Ewe absolve him of the liability under Section 34 of the IPC insofar as thecharges under Sections 302 and 324 of the IPC are concerned. We,however, find him guilty of the offence punishable under Section 323read 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 othercharges.F

17. This appeal is, therefore, allowed to the aforementioned extent.If the appellant has undergone the sentence in respect of offence underSection 323 read with Section 34 of the IPC, he be set at liberty, unlesshis custody is required in connection with any other offence.

GBibhuti Bhushan Bose

Appeal partly allowed.

H3 (2017) 11 SCC 105