LawDistill
Supreme Court of India

STATE OF HARYANA vs SATENDER on 23 May, 2014

Cites 7 provisionsCites 1 judgmentsCited by 0
Crl.A. No.-001521-001521 - 2013Official PDFBench Balbir Singh Chauhan, Arjan Kumar SikriAdvocates KAMAL MOHAN GUPTA
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1521 of 2013
STATE OF HARYANA .....APPELLANT(S)
VERSUS
SATENDER .....RESPONDENT(S)
W I T H
CRIMINAL APPEAL NOS. 1526-1527 OF 2013
CRIMINAL APPEAL NO. 1519 OF 2013
A N D
CRIMINAL APPEAL NO. 1528 OF 2013
JUDGMENTJ U D G M E N T
A.K. SIKRI, J.
Six persons were accused of
conspiring with each other and committing murder of one Ramesh
Masta with common intention. FIR No. 414 dated November 06,
2004 was registered against these six accused persons at Police
Station City Bhiwani, Haryana, under Sections 302, 120-B and 34 of
Criminal Appeal No. 1521 of 2013 & connected cases Page 1 of 22

High Court is, therefore, right in holding that there was a possibility that he

has been introduced by the prosecution to involve the other three persons

in this case.

With this, stage is now ripe for dealing

with each appeal.

CRIMINAL APPEAL NO. 1519 of 2013

13)As already noticed, main role in the killing of Ramesh Masta is

attributed to Rahul @ Shashi Partap, who had fired the gunshot resulting

into the head injuries, which became the cause of this death. He has

been convicted by the trial court and his conviction has been upheld by

the High Court as well. We find from the record that complainant – Pawan

Kumar Masta appeared as PW-1 and deposed as per the contents of the

FIR. He, thus, is an eye witness to the whole episode. He not only

identified Rahul @ Shashi Partap, but also identified Bharat as driver of

the motorcycle and

Satender as pillion rider. Another eye witness is Mr. Dinesh, who

appeared as PW-2 and corroborated the statement of PW-1 narrating the

incident in identical manner. Other main witnesses are those who were

involved in the investigation, including PW-13 Sub-Inspector Satyavir Singh, PW-18 Inspector Darshan Lal, PW-19 Inspector Ram Avtar, PW-8 Inspector Dharampal, PW-7 Mr. Rameshwar Dhariwal, Divisional

Engineer at Mobile Switching Centre, Panipat and Shri J.B. Gupta, Chief

Judicial Magistrate, who appeared as PW-11 and deposed to the effect

that Satender and Bharat were produced before him with their faces

covered in mufflers along with an application for holding a Test

Identification Parade, but the accused persons have declined to join the

same.

14)It is not necessary to describe in detail the deposition of the Police

officials named above, who had appeared as witnesses, inasmuch as,

learned counsel appearing for Rahul @ Shashi Partap, even for that

matter learned counsel appearing for Bharat, the other convict, did not

make any submissions pointing out any irregularities or infirmities in the

investigation carried out by these officers. The only argument of the

learned counsel appearing for Rahul @ Shashi Partap, was that he was

falsely implicated by the complainant and he was innocent. However, he

could not point out any defect in the findings of fact recorded by the two

courts below accepting testimonies of PW-1 and 2, the two eye witnesses,

as reliable, unimpeachable and trustworthy. After going through the record again, including their depositions, we are of the opinion that the two

courts below have rightly found the statements of the two eye witnesses

worthy of credence. Based thereupon, under no circumstances, Rahul @

Shashi Partap, who had fired the gunshot, which hit the head of the victim,

can escape his liability. Moreover, the evidence of the eye witnesses is

corroborated by the medical evidence available on the record. In addition,

there was also recovery of country made pistol of Rahul @ Shashi Partap

along with the motorcycle, which was used for the crime, vide Recovery

Memo Exhibit P-G, from Rahul @ Shashi Partap on the basis of the

disclosure statement made by him. Thus, the prosecution established,

beyond reasonable doubt, the involvement of Rahul @ Shashi Partap in

commission of the crime with cogent, relevant and direct evidence. It

would be worthwhile to note that in his statement recorded under Section

313 of the Code of Criminal Procedure, 1973, apart from stating that he is

innocent and it was a blind murder case, his only defence was that there

was a revenue litigation between his father Karambir and the deceased

Ramesh Masta and that Karambir and Ramesh Masta had contested

elections of Municipal Corporation, Bhiwani against each other and

because of these reasons, Ramesh Masta and his family members were

nursing grudge against Rahul @ Shashi Partap and his family members. Once the actus reus is established, motive has been provided by Rahul @ Shashi Partap himself in his statement under Section 313 of the Code of

Criminal Procedure, 1973. We, thus, are of the opinion that the trial court

rightly held Rahul @ Shashi Partap guilty of murder under Section 302

IPC as well as in possession of illegal arms thereby convicting him under

Section 25 of the Arms Act.

15)For the foregoing reasons, this appeal is liable to be dismissed and is,

accordingly, dismissed.

CRIMINAL APPEAL NO. 1528 OF 2013

16)Insofar as this appeal filed by Bharat is concerned, argument of

learned counsel appearing for him was that he has not played any active

role. The allegation against him was that he was riding the motorcycle.

However, this motorcycle did not belong to him and was not even

recovered from him. Learned counsel made a passionate plea to the

effect that the prosecution had failed to prove common intention and also

that Bharat even had any knowledge that Rahul @ Shashi Partap was

going to shoot Ramesh Masta. He also submitted that Bharat was not

even named in the FIR. He was not associated with Rahul @ Shashi

Partap and it was Rahul who had a grudge against the deceased. He further argued that in the Arrest Memo (Exhibit DZ), the date was changed

from 07.11.2004 to 09.11.2004, which throws doubt upon the involvement

of Bharat, who was unnecessarily roped in at a later stage. Pleading that

in such circumstances Bharat also should have been acquitted by the

Court, as was done in the case of Satender by the High Court, who was

also a pillion rider, he referred to the judgments of this Court in Abdul

Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 and Ram Nath

@ Mamaji @ Jiwanlal v. State of Madhya Pradesh, AIR 1953 SC 420.

17)In Abdul Sayeed (supra), this Court observed as under:

“49. Section 34 IPC carves out an exception from general

law that a person is responsible for his own act, as it

provides that a person can also be held vicariously

responsible for the act of others if he has the “common

intention” to commit the offence. The phrase “common

intention” implies a prearranged plan and acting in concert

pursuant to the plan. Thus, the common intention must be

there prior to the commission of the offence in point of time.

The common intention to bring about a particular result

may also well develop on the spot as between a number of

persons, with reference to the facts of the case and

circumstances existing thereto. The common intention

under Section 34 IPC is to be understood in a different

sense from the “same intention” or “similar intention” or

“common object”. The persons having similar intention

which is not the result of the prearranged plan cannot be

held guilty of the criminal act with the aid of Section 34 IPC.

(See Mohan Singh v. State of Punjab, AIR 1963 SC 174)”.

18)In Ram Nath @ JUDGMENTMamaji @ Jiwanlal (supra), the relevant discussion for our purposes, is as follows:

“18. The further contention of Dr. Tek Chand that the High

Court was in error in holding that the provisions of Section

34 were attracted to the facts of the case is also well

founded. There is no evidence whatsoever of any

premeditation or of a prearranged plan by the assailants of

murdering Sunder. The conclusions of the High Court in

para. 53 of its judgment seem to be based more on

conjectures than on admissible material. No act or conduct

on the part of the accused has been proved from which an

inference of a prearranged plan to murder Sunder could be

raised.

Even if it is held proved that all the appellants were

seen at that spot at the time of firing this fact by itself could

not be held enough to prove a common intention of the

appellants to murder Sunder. It can well be that these four

persons were standing together and one of them suddenly

seeing Sunder fired at him. This possibility has not been

eliminated by any evidence on the record. In such a

situation when it would not be known who fired the fatal

shot, none of such persons could be convicted of murder

under Section 302, I. P. C. It seems to us that in this case

the High Court failed to appreciate the true effect of the

decision of the Privy Council in--'Mahbub Shah v.

Emperor', AIR 1945 PC 118 (A), and its judgment in regard

to the applicability of Section 34, I. P. C. has to be

reversed.”

19)We are unable to chew any of the aforesaid submissions of the learend

counsel. Argument of the learned counsel that Bharat was not named in

the FIR would hardly be of any consequence. In the FIR, the complainant

categorically stated that three young aged boys came upon the

motorcycle of silver colour without number plate. Clear description of Rahul @ Shashi Partap with parentage and residential address is given.

It is further stated in the FIR that along with Rahul there was another boy

who was riding the motorcycle and had kept the motorcycle in start mode.

He was having normaly body and his age was about 22-24 years. Thus,

not only the complainant gave the physical description and age of Bharat,

he even identified him in the Court. More pertinently, when Bharat was

produced by the Police after his arrest before PW-11 Mr. J.B. Gupta, Chief

Judicial Magistrate, along with an application for holding Test Identification

Parade, Bharat refused to join the same. Further, his conduct of not only

riding the motorcycle, but stopping the same at the spot where the

deceased was standing and keeping the engine of the motorcycle running

clearly leads to the conclusion that he was well aware of the plans of

Rahul @ Shashi Partap and was a party in executing the same. The

purpose of keeping the motorcycle in a running condition was to escape

from the place as soon as Rahul @ Shashi Partap fires the shot. Rahul,

who had alighted from the motorcycle along with Satender, came back

and Bharat eloped with them while riding the motorcycle. It would also be

relevant to mention that the motorcycle was recovered from Rahul @

Shashi Partap on the disclosure statement made by Bharat. Merely because Bharat was not the owner of the motorcycle is neither here nor there as it is totally irrelevant. Fact is that he was riding the motorcycle

and had gone with Rahul @ Shashi Partap to commit the murder of

Ramesh. The conduct, behaviour and active role of Bharat, along with

Rahul, clearly depicts his knowledge as well as common intention of two

of them to commit the crime. On these facts, Bharat cannot take help of

the judgments cited by the learned counsel. Once common intention is

proved establishing the ingredients of Section 34 IPC, Bharat becomes

vicariously liable to the same magnitude as Rahul, who actually shot the

victim.

20)Insofar as change of date in the Arrest Memo is concerned, it is also

not of any avail to Bharat simply because of the reason that this Arrest

Memo was produced on record by Inspector Ram Avtar (PW-19) who had

arrested Bharat. However, no question about this date was put to him in

the cross-examination so as to give an opportunity to PW-19 to explain

the same.

21)Having regard to the aforesaid facts, the judgments relied upon by the

learned counsel appearing for Bharat have no application in the present case. Accordingly, JUDGMENTCriminal Appeal No. 1528 of 2013 filed by Bharat is dismissed.

CRIMINAL APPEAL NO. 1521 OF 2013 CRIMINAL APPEAL NOS. 1526-1527 OF 2013

22)This leaves us to the case of Satender, who has been acquitted by the

High Court and challenging his acquittal appeals are preferred by the

State as well as the complainant. He had also gone along with Rahul @

Shashi Partap and Bharat and was a pillion rider. However, the reason for

acquittal of Satender was that no overt act had been attributed to him by

any of the eye witnesses. It was only during investigation the prosecution

tried to portray that he had also fired a shot from his pistol, which he was

carrying, but it had missed the target. This act of attribution, namely, he

had fired the shot but it had missed, could not be proved by the

prosecution during trial. Even the eye witnesses did not depose that

Satender was armed with any weapon. From this the High Court drew the

inference that during investigation and with a view to strengthen its case

against Satender, the investigating agency had tried to build up the said

story. The High Court was of the view that since no overt act had been

attributed to Satender by the eye witnesses and there was no such allegation in the FIRJUDGMENTalso, the possibility that he had been falsely involved in this case cannot be ruled out. He was not even identified by the

complainant at the first instance. Nothing could be shown which could

prove that he also had common intention, along with the two convicts, to

kill the deceased or had knowledge about the designs of the other two

persons with whom he had allegedly gone on motorcycle. Therefore,

judgment in Ram Nath @ Mamaji @ Jiwanlal (supra) becomes

applicable in his case. Thus, prosecution case qua him has been found

doubtful for the aforesaid reasons.

23)We are of the view that sufficient reasons are given by the High Court

in order to come to a conclusion that case against Satender has not been

proved beyond reasonable doubt. Once such a benefit of doubt is given

after sifting and analysing the evidence and the findings are not perverse,

it would not be appropriate to reverse that finding in these proceedings

under Article 136 of the Constitution of India. The appeal of State as well

as the one filed by the complainant against the acquittal of Satender are,

accordingly, dismissed.

(A.K. SIKRI)