RAMESH ALIAS DAPINDER SINGHversusSTATE OF HIMACHAL PRADESH

896                      [2021]REPORTS
               SUPREME COURT    2 S.C.R. 896               [2021] 2 S.C.R.


A                   RAMESH ALIAS DAPINDER SINGH
                                       v.
                     STATE OF HIMACHAL PRADESH
                       (Criminal Appeal No. 347 of 2021)
B                              MARCH 22, 2021
              [UDAY UMESH LALIT AND K.M. JOSEPH, JJ.]
             Penal Code, 1860 – ss.302, 323 and 324 r/w 34 – Murder
      consequent to armed assault – Common intention – Vicarious liability
      – Three accused – ‘S’ and ‘N’, maternal uncles of PW1 (informant),
C     were the principal accused – Accused-appellant was their driver –
      ‘N’ allegedly nursed ill-will against PW1 – PW1 had visited residence
      of his maternal grandmother alongwith his friends – ‘S’ and ‘N’,
      who were present there, abused PW1 and his friends leading to a
      quarrel and scuffle – PW1 and his friends hurriedly left the spot
      but stopped near a school – ‘S’ and ‘N’ accompanied by appellant,
D     came there on a motorcycle and started assaulting PW1 and his
      friends – ‘S’ had a danda and ‘N’ had a sickle (darat) – PW1 and
      one of his friends received injuries and ran away – The other friend
      died – Trial court convicted all the three accused – Conviction
      affirmed by High Court – Whether appellant could be said to be
E     guilty with the aid of s.34 IPC – Held: Ocular testimony in support
      of the prosecution was only by way of the testimony of PW1 – PW1
      did not attribute any specific overt act to the appellant insofar
      assault on the deceased was concerned; nor was the appellant stated
      to be armed with any weapon – It was not even the case that the
      appellant had exhorted or had facilitated, in any manner, the assault
F     on the deceased – The only attribution to the appellant was regarding
      common or collective act where “three persons got down from the
      motorcycle and started assaulting with Danda and fist blows” –
      Appellant was also not attributed presence and participation in the
      quarrel or scuffle between PW1, and ‘S’ and ‘N’ – No certainty that
G     the appellant shared the common intention with ‘S’ and ‘N’ to commit
      the murder of the deceased or that the appellant had done something
      ‘in furtherance’ of the common intention of all – Benefit of doubt
      granted to appellant and he is absolved of the liability u/s.34 IPC
      insofar as the charges u/ss.302 and 324 IPC are concerned – He
      is, however, found guilty of the offence punishable u/s.323 r/w s.34
H     IPC.
                                        896
   RAMESH ALIAS DAPINDER SINGH v. STATE OF HIMACHAL                    897
                      PRADESH

     Penal Code, 1860 – s.34 – Principle of vicarious liability        A
under – Outlined.
      Partly allowing the appeal, the Court
       HELD: 1.1. The principle of vicarious liability under Section
34 of the IPC states, “when a criminal act is done by several
persons in furtherance of the common intention of all”, each of        B
those persons would be liable for ‘that act’ in the same manner
as if it were done by him alone. [Para 13][902-D-E]
      1.2. In the facts and circumstances of this case, first and
foremost, the ocular testimony in support of the prosecution is
only by way of the testimony of PW1. That witness did not attribute    C
any specific overt act to the appellant insofar assault on the
deceased was concerned; nor was the appellant stated to be armed
with any weapon. It was not even the case that the appellant had
exhorted or had facilitated, in any manner, the assault on the
deceased. The only attribution to the appellant was regarding          D
common or collective act where “three persons got down from
the 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 abused
him and his friends at the residence of his maternal uncle leading     E
to a quarrel and scuffle. The appellant was not attributed presence
and participation in such quarrel or scuffle. [Para 14][902-F-G]
      1.4. Having considered the entire material on record, it
cannot be said with certainty that the appellant shared the common
intention with ‘S’ and ‘N’ to commit the murder of the deceased        F
or that the appellant had done something ‘in furtherance’ of the
common intention of all. Giving him benefit of doubt, he is absolved
of the liability under Section 34 of IPC insofar as the charges
under Sections 302 and 324 of IPC are concerned. He is, however,
found guilty of the offence punishable under Section 323 read
with Section 34 of IPC. [Para 16][904-D-F]                             G
      Dharam Pal and others v. State of Haryana (1978) 4
      SCC 440; Vithal Laxman Chalawadi and others v. State
      of Karnataka (2010) 14 SCC 739 : [2010] 12 SCR

                                                                       H
898            SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A           574; and Bishu Sarkarand others v State of West Bengal
            (2017) 11 SCC 105 – relied on.
                              Case Law Reference
           (1978) 4 SCC 440                relied on             Para 15
B          [2010] 12 SCR 574               relied on             Para 15
           (2017)11 SCC 105                relied on             Para 15
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No.347 of 2021
            From the Judgment and Order dated 09.09.2016 of the High Court
C
      of Himachal Pradesh at Shimla in CRA No.267 of 2016.
           Pradeep Kumar Dey, Ms. Shilpi Dey Auditya, Ms. Shreyasi
      Chakrabarty, Ms. Shehla Chaudhary, M. Anas Chaudhary, Sumit Kumar
      Sharma, Ansar Ahmad Chaudhary, Advs. for the Appellant.
D           Abhimanyu 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.

E           1. Delay condoned. Leave granted.
            2. This appeal challenges the judgment and order dated 09.09.2016
      passed by the High Court of Himachal Pradesh at Shimla in Criminal
      Appeal No. 267 of 2016.
             3. The appellant – original accused No.3 was tried along with two
F     others in Sessions Trial No. 40 of 2014 on the file of Additional Sessions
      Judge (II), Una, Himachal Pradesh, in respect of offences punishable
      under Sections 302, 323, 324 read with Section 34 of the Indian Penal
      Code, 1860 (‘the IPC’, for short).
           4. The basic facts leading to the aforementioned Trial, as stated
G     by PW1-Sukhwinder Singh, the original informant, were as under:-
            “…In November 2013, I had taken away Puja Devi daughter of
            Satnam Singh, resident of Dangoli, Tehsil and Distt. Una, and had
            subsequently married her. The accused Nirmal Singh is my
            maternal uncle, and the aforesaid Puja Devi is his sister-in-law
H           (Saali). On this count, my maternal uncle Nirmal Singh nursed an
RAMESH ALIAS DAPINDER SINGH v. STATE OF HIMACHAL                         899
         PRADESH [UDAY UMESH LALIT, J.]

  ill-will against me. I had come home to Pubowal from Baddi on          A
  16.03.2014. I had met my friends Kulwinder alias Babbi and Daljit
  Singh alias Deepu on 18.03.2014 at Pubowal at about 8.00 p.m.
  On my request, they accompanied me to house of my maternal
  grandmother at Baliwal. We travelled to the said place by
  motorcycle bearing registration No. PB.08-BL-1390, belonging
                                                                         B
  to Babbi. We reached my maternal home at about 8.30 p.m. In
  my maternal home, my grandmother and both my maternal uncles,
  Sadhu Singh and Nirmal Singh were present. On reaching the
  house we paid respect to my grandmother and uncles by touching
  feet etc. But my uncles started abusing me and quarrelling with
  me. During the scuffle, the shirt of Babbi was torn. Thereupon,        C
  we hurriedly left the spot on the motorcycle, which was being
  driven by Daljit Singh. When we had reached near the High School,
  Kulwinder Singh alias Babbi stated that he had dropped his purse
  somewhere. We began looking for the purse, after getting down
  from the motorcycle. Suddenly both my maternal uncles, Sadhu
                                                                         D
  Singh and Nirmal Singh, along with their driver namely Ramesh
  Kumar, 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 persons
  got down from the motorcycle and started assaulting us with Danda
  and fist blows etc. My uncle Sadhu Singh had a Danda, whereas          E
  my uncle Nirmal Singh had a sickle (Darat) in his hand. He gave
  me 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, and
  thereafter gave another blow to Daljit Singh on his neck.
  Thereupon, I ran and hid myself behind a bush. From there I saw
                                                                         F
  my uncles Sadhu Singh and Nirmal Singh administering blows to
  my friends, Babbi and Daljit. On seeing this, I ran away further.
  Thereafter, Babbi also ran away from the spot. The Driver
  Ramesh, thereafter ran away from the spot and started raising a
  cry, 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,   G
  I came out from the bush and saw the dead body of Daljit Singh
  lying on the ground. I stated to the police about the incident. The
  police recorded my statement, Ext. PW1/A. I have seen the
  statement, which bears my signatures, which I had appended after
  the contents of the statement were read over and explained to me
                                                                         H
900            SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A            by the police. My friend Daljit Singh was murdered. The police
             carried out the investigation on the spot. …”
             5. Kulwinder Singh alias Babbi, whose presence was referred to
      by PW1-Sukhwinder Singh, was examined as PW7. But this witness did
      not support the prosecution and was declared hostile. It was asserted by
B     this witness as under:-
             “…It is incorrect that on my intervening, I was given a stick blow
             by Sadhu Singh, which landed on my back, and I was given fist
             and kick blows by Ramesh due to which I sustained injuries. Self
             stated that our altercation was with some other persons. It is
             incorrect that Sadhu Singh caught me and in the process we fell
C            on the rough surface on the spot. I cannot say whether Daljit
             Singh and Sukhwinder were given Darat blows by Harjinder Singh
             alias Nimma, and Daljit Singh received injuries on his neck and
             arm. It is correct that Sukhwinder had sustained injury on his
             arm. However, I cannot say what was the reason from the same.
D            I did not see any injuries on the person of Daljit Singh and
             Sukhwinder Singh, on the spot. It is correct that there was ample
             moonlight 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 accompanied
E     the deceased, were not quite consistent. PW15-Dr. G. S. Didhra deposed
      about the injuries suffered by PWs 1 and 7. Injuries of PW1 were:-
             “1. Clean incised wound on left middle finger distal to inter
             pnallyngeal joint.
             2. Sickle shape clean incised wound on left middle phallynx or
F            ring finger.”
             Further, following injuries were found on the person of PW7:-
             “1. Clean impact contusion over left shaft of humerous. 3 cm
             long.
             2. Impact contusion below left angle of scapula measuring 3.5 x
G            0.5 cms.
             3. Impact contusion about right supra scapular region measuring
             4 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 2x3
H            cms.
   RAMESH ALIAS DAPINDER SINGH v. STATE OF HIMACHAL                           901
            PRADESH [UDAY UMESH LALIT, J.]

       6. Two impact contusions and abrasions over both knee joints,          A
       right heel and toe (Metatarso phalyngeal joint).”
       7. PW27-Dr. Piyush Nanda, who had conducted Post Mortem on
the body of the deceased, deposed about the injuries of the deceased as
under:-
       “(i) Clean incised measuring 3-1/2” x 1-1/2" x 4" and on the left      B
       side, margin sharp extending below the angle of mandible to the
       whole of ear lobe with cut through injury to the carotid artery and
       jugular vessels with cut through injury to all the neck muscle and
       fascia and tissue with fracture mandible (angle).
       (ii) Clean incised wound measuring 2x1" x bone depth with fracture     C
       of metacarpal bones on the right wrist.
       All the above injuries were found to be ante mortem in nature. In
       my opinion he died due to haemorrhagic shock due to injuries to
       the left carotid and jugular vessels.
       …                             …                       …
                                                                              D
       I have seen the darat Ex. S1. The injuries of the kind mentioned
       above are possible by the said weapon/implement. My written
       opinion regarding the injuries being possible by the weapon shown
       to me is in red circle Ext.PW27/C.”
       8. Considering the eyewitness account, the Trial Court by its order
                                                                              E
dated 07.04.2016 convicted all three accused under Section 302 read
with 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 undergo
life imprisonment under the first count and sentences of rigorous
imprisonment of one year and three years on the second count and third
count respectively, in addition to imposition of fine and default sentence.   F
       9. The convicted accused approached the High Court by filing
Criminal Appeal No. 267 of 2016, which was dismissed by the High
Court by its judgment and order dated 09.09.2016.
       10. It must be stated that the order passed by the High Court
affirming the conviction and sentence, was accepted by accused Nirmal         G
Singh and no further challenge was raised. However, accused Sadhu
Singh preferred Special Leave Petition (Crl.) No. 1817 of 2019, which
was dismissed by this Court on 10.07.2019.
       11. Appearing in support of the appeal, Mr. P.K. Dey, learned
advocate submitted that the appellant was neither armed with any Lathi
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902             SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A     or Danda nor was there any assertion from PW1-Sukhwinder Singh
      attributing any specific overt act to the appellant. On the other hand,
      such specific overt acts were attributed to accused Sadhu Singh and
      Nirmal Singh. Mr. Dey also stressed the fact that the appellant had run
      away from the spot and had raised a cry, upon which many people
      gathered at the spot. It was, therefore, submitted by Mr. Dey that the
B
      appellant could not be said to be guilty with the aid of Section 34 of the
      IPC.
             12. Mr. Abhimanyu Jhamba, learned Advocate appearing for the
      State, however, relied upon the facts that the appellant had come along
      with accused Sadhu Singh and Nirmal Singh who were separately armed
C     with Danda and Sickle; and that the appellant had given fist and kick
      blows. In the submission of the learned counsel, these facts pointed
      towards active participation on part of the appellant and, therefore, the
      courts below had rightly found him guilty with the aid of Section 34 of
      the IPC.
D            13. The principle of vicarious liability under Section 34 of the IPC
      states, “when a criminal act is done by several persons in furtherance
      of the common intention of all”, each of those persons would be liable
      for ‘that act’ in the same manner as if it were done by him alone.
             First and foremost, the ocular testimony in support of the
E     prosecution is only by way of the testimony of PW1. That witness did
      not attribute any specific overt act to the appellant insofar assault on the
      deceased was concerned; nor was the appellant stated to be armed with
      any weapon. It was not even the case that the appellant had exhorted or
      had facilitated, in any manner, the assault on the deceased. The only
      attribution to the appellant was regarding common or collective act where
F     “three persons got down from the motorcycle and started assaulting
      with Danda and fist blows”.
             14. Going by the narration of PW1, accused Sadhu Singh and
      Nirmal Singh had abused him and his friends at the residence of his
      maternal uncle leading to a quarrel and scuffle. The appellant was not
G     attributed presence and participation in such quarrel or scuffle.
             15. In a situation where the overt acts were attributed to principal
      accused and not to a person accompanying such principal accused, the
      observations in some of the cases decided by this Court are:-


H
      RAMESH ALIAS DAPINDER SINGH v. STATE OF HIMACHAL                            903
               PRADESH [UDAY UMESH LALIT, J.]

         a)    Dharam Pal and others v. State of Haryana1                         A
               “15. 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         B
               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            C
               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. …”                    D
         b)    Vithal Laxman Chalawadi and others v. State of
               Karnataka 2
               “15. As regards the role of appellant Gangappa, the
               evidence on record suggests that he gave a chappal-blow
               to PW 6, the mother of the deceased Ramesh. There is no
               other overt act attributed to Appellant 3-accused who              E
               appears to have joined the melee when tempers ran high.
               The allegation that he exhorted Accused 1 and 2 to kill the
               deceased has not in our opinion been satisfactorily proved
               to justify his conviction for murder with the help of Section
               34 IPC.                                                            F
               16. The nature of the evidence on record and the role that
               appellant Gangappa is alleged to have played, does not, in
               our opinion, establish that Appellant 3 shared the common
               intention with Nijappa and Vithal to commit the murder of
               deceased Ramesh. The conviction of Appellant 3-accused
               for the offence of murder punishable under Section 302             G
               IPC read with Section 34 IPC is, therefore, not sustainable.
               The evidence, however, proves beyond a reasonable doubt
               that the appellant, Gangappa assaulted PW 6 Putalavva with
1
    (1978) 4 SCC 440
2
    (2010) 14 SCC 739                                                             H
904               SUPREME COURT REPORTS                         [2021] 2 S.C.R.


A                   a chappal. His conviction under Section 323 IPC by the
                    trial court and the High Court deserves to be affirmed.”
              c) `Bishu Sarkar and others v. State of West Bengal3
                    “7. … The allegations coming from all the witnesses are
                    consistent that none of the present appellants had dealt any
B                   blow by any weapon and all that they did was to participate
                    in the scuffle. It is true that PWs 2 and 5 assert that the
                    present appellants had caught hold of Raju Bose. But it is
                    not clear from the record whether such act was so intended
                    to enable Accused 1 to deal the fatal blow. Further, PW 3 is
                    completely silent on this aspect.
C
                    8. In the circumstances we deem it appropriate to grant
                    benefit of doubt to the present appellants and acquit them
                    of the charge under Section 302 read with Section 34 IPC.
                    This appeal is thus allowed and the conviction and sentence
                    recorded against the present appellants is set aside. ...”
D             16. Having considered the entire material on record, in our view,
      it cannot be said with certainty that the appellant shared the common
      intention with accused Sadhu Singh and Nirmal Singh to commit the
      murder of the deceased or that the appellant had done something ‘in
      furtherance’ of the common intention of all. Giving him benefit of doubt,
E     we absolve him of the liability under Section 34 of the IPC insofar as the
      charges under Sections 302 and 324 of the IPC are concerned. We,
      however, find him guilty of the offence punishable under Section 323
      read 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 other
      charges.
F
              17. This appeal is, therefore, allowed to the aforementioned extent.
      If the appellant has undergone the sentence in respect of offence under
      Section 323 read with Section 34 of the IPC, he be set at liberty, unless
      his custody is required in connection with any other offence.

G     Bibhuti Bhushan Bose                                     Appeal partly allowed.




H     3
          (2017) 11 SCC 105