The Delhi High Court comprising a bench of Justices Vipin Sanghi and P.S. Teji in the case of Dil Bhar v. State has acquitted a person convicted by the Trial Court for murder committed by his co-accused by stabbing a person, while robbing the deceased of his phone and wallet, for lack of evidence to show common intention under Section 34 IPC.
In the instant case, the deceased and his friend were travelling from Muradabad to Delhi to eventually go to Banglore for recruitment in the Army. They got down at Ghaziabad and took a shuttle train towards Delhi, and while they were in the said shuttle train, just before Yamuna Bridge the train stopped and two boys came inside the train with naked knives and demanded for mobile phone and wallet. On resistance, they stabbed the complainant and the deceased and ran away with the mobile and wallet. As soon as the train reached the Old Delhi Railway Station, the complainant approached a police constable who took the complainant and the deceased to the hospital where the deceased was declared as brought dead.
The accused were apprehended and were tried wherein one of the accused who had committed the murder was declared as juvenile and was tried before the Juvenile Court and he plead guilty before it. The trial proceeded only against the appellant (Dil Bhar) in the present case wherein the charge was of stabbing the complainant below the waist and also of causing murder u/s 302 read with Section 34 IPC, as it was the Dil Bhar who had told the co-accused that “yeh aise nahin dega, Maar iske chaaku”. It was submitted by the appellant before the High Court that it was not the intention of the appellant to commit murder and cause death of the deceased but only to commit robbery. Infact, the appellant had given a blow to the complainant below the waist on the right side which supports the fact that the appellant wanted to commit robbery and not cause murder, and rather it was the co-accused who stabbed the deceased in the stomach.
The High Court accepting the submissions made by the appellant to the extent that there is no offence made out under Section 302 read with Section 34 IPC as there was no common intention between the two accused to commit murder and it was only the intention of the appellant Dil Bhar to commit robbery, observed,
“29. However, on appreciation of the evidence, we are of the considered view that it cannot be said that the appellant shared the intention with the coaccused to commit the murder of the deceased. There is no evidence or circumstance from which it can be said that on the day of incident, the appellant had the intention to commit the murder of the deceased. Pertinently, when he injured the complainant (PW-1), he had used the knife such that PW-1/complainant suffered only “simple” injury, as recorded in his MLC vide Ex.PW12/A. PW-12 Dr.Priya Ranjan, CMO, AAA Govt. Hospital deposed that the injured complainant (PW-1) was referred after giving first aid. Thus, it appears that the appellant gave the knife blow for the purpose of intimidating the complainant (PW-1) into surrendering before the accused, and not for the purpose of causing fatal or serious injuries. When he exhorted the co-accused to attack the deceased with the knife, his exhortation has to be viewed in the light of his own conduct qua the complainant (PW-1). Thus, he could not be said to have shared the intention with the co-accused to give a fatal knife blow to the deceased. The appellant asked his co-accused to give the knife blow to the deceased for the same purpose as the appellant did, i.e. to intimidate the deceased into surrender, so that the purse of the deceased could be taken out without resistance. It was the act of the co-accused, and not that of the appellant, when he gave knife blow on the stomach of the deceased which resulted into his death. The same was not the act of the appellant, and the appellant could not be said to have shared with the co-accused the intention to give a fatal knife blow to the deceased.
30. It is a settled law that the common intention to commit a criminal act depends upon the circumstances. The circumstances brought on record do not make out the present case to convict the appellant for commission of murder of the deceased with the aid of Section 34 of the IPC.”
The court discussed the case of Hira Lal Malik v. State and the relevant para is as below:
“31. In the case of Hira Lal Malik v. State, 1977 CriLJ 1921, the Supreme Court observed that :
“38. Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then one accused can be made vicariously liable for the acts and deeds of the other co-accused.” (emphasis supplied)”
The court finally held that to establish a case under Section 34 IPC, prosecution has to prove beyond all reasonable doubt that the appellant had the knowledge of the intention of his co-accused, and they voluntarily shared the said intention. The prosecution has failed to make out a case of conviction of the appellant for the offence punishable under Section 302 IPC with the aid of Section 34 IPC as it is not that any and every act done during the course of attack on the deceased would indicate that the appellant shared the common intention, and only such overt act may be relevant which indicates that the appellant also shared the intention to cause the death of the deceased. Thus, the appellant was acquitted for the offence punishable u/s 302/34 IPC. However, the judgment of the trial court convicting the accused of Section 394/34, 397 and 411 IPC was upheld.
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