962 of 2004; 977 of 2004; 981 of 2004; and 61 of 2005, preferred by Sunil (appellant in Criminal Appeal No.688 of 2011), Shri Krishna (appellant in Criminal Appeal No.785 of 2011), Ravinder (appellant in Criminal Appeal No.689 of 2011) and Babu Ram @ Fauji (co-accused), respectively, were dismissed whereas Criminal Appeal No.14 of 2005 of co-accused Vijay was allowed. Jahangir Puri, convicting and sentencing Babu Ram @ Fauji, Sunil, Shri Krishan and Ravinder under Sections 302/307/34 of the Indian Penal Code (in short, “the I.P.C.”) has been affirmed whereas conviction of co-accused Vijay has been set aside. This is a case where, on account of indiscriminate firing by Babu Ram @ Fauji (non- appellant) from his licensed single barrel gun, two persons, namely, Anil Kumar and Vijay, suffered gun- shot injuries and died; and 26 others received pellet injuries, some of them being grievous in nature. As, according to the prosecution, genesis of the incident was a dispute between two families on account of young male members of one family (i.e., of Sri Krishan) teasing female members of the other (i.e., family of Satpal), the relationship of accused persons inter se assumes importance, which is as below: (i) Shri Krishan is the husband of Babu Ram’s sister; (ii) Sunil is son of Shri Krishan; (iii) Ravinder is son of Babu Ram; and (iv) Vijay (already acquitted) is a distant relative of Shri Krishan.
As Babu Ram took the plea of self-defence, the trial court as well as the High Court examined his defence plea in detail. Mangat Ram PW-2 also was shot at in street No.300. PW-8, PW-9, PW-13, PW-14, PW-15 and PW- 27 have categorically stated that they received the gunshot injuries when they were in street No.300. Smt Kalki & Anr (1981) 2 SCC 752:- “As mentioned above, the High Court has declined to rely on the evidence of P.W.I on two grounds: (1) she was a “highly interested” witness because she “is the wife of the deceased”, and (2) there were discrepancies in her evidence. 1 had no interest in protecting the real culprit, and falsely implicating the respondents.” Besides, the other prosecution witnesses namely PW-17, PW-23, PW-29, PW-30, PW-33, PW-34, PW- 35, PW-36, PW-37, PW-38, PW-39, PW-40, PW-41. Out of said 17 witnesses, PW-23, PW-29, PW-33, PW-37, PW-38, PW-39, PW-40, PW-41, PW-42, PW-43, PW-44 and PW-46 have categorically deposed that they were present at Gali No.300 when they received the gunshot wounds. Further, the falsity in the testimony of the defence witnesses who claim that Babu Ram, acting in defence of his house and himself and his family members, fired from the roof of his house is apparent from the fact that standing on the roof of house No.366 which is the house of Babu Ram, it is just not possible to hit anybody standing on street No.300. Standing on any point at the roof of the house of Babu Ram, the straight line connecting the said spot from any portion of his roof to any spot on street No.300 would pass through the roof and the walls of house No. Tiny plots ad measuring 10′ x 23′.10″ have been allotted to the rehabilitated slum dwellers by the government. As per the witnesses of the prosecution, some of them have spoken of all co-accused being present at street No.300, with some excluding the presence of co- accused Vijay. The inevitable conclusion is, that as claimed by the witnesses of the prosecution, Babu Ram jumped from the roof of his house on to the roof of House No.D-354 of Mangat Ram and standing at the roof of Mangat Ram’s house at the spot marked ‘4’ on the site plan ExPW-7/A, indiscriminately fired 16 shots, all directed downwards on the persons in street No.300, with specific targets being Mangat Ram and his family members against whom Babu Ram had a grievance of being the sympathizers of Lala Satpal. The evidence, as held above, establishes that Babu Ram fired from the roof of the house of Mangat Ram and targeted people on street No.300 where the spat between the family members of Shri Krishan and Lala Satpal took place.
In respect of the appellants Sunil, Shri Krishan and Ravinder, the High Court observed that Mangat Ram (PW-2), Ashok Kumar (PW-8), Kashmere Lal (PW- 9), Darshana (PW-13), Raj Kumar (PW-14) and Sushil Kumar (PW-15), who were all injured in the firing, have categorically deposed that those accused were present with Babu Ram at the time of altercation and they all left simultaneously with Babu Ram and were noticed at the roof top exhorting Babu Ram to fire. The learned counsel for the appellants submitted that it is a case where the principal accused, namely, Babu Ram, had admitted that he opened fire at the mob from his licensed weapon. Therefore, even if it is assumed that at some stage the appellants had exhorted Babu Ram to fire shots, in absence of clear and cogent evidence that Babu Ram was instigated/exhorted to fire shots at the two deceased, the appellants cannot be convicted for the offence punishable under Section 302 with the aid of Section 34 of the IPC. In addition to above, the learned counsel for the appellants submitted that the trial of the appellants suffers from a fundamental defect inasmuch as the incriminating circumstance about the appellants exhorting/instigating Babu Ram to fire shots at the two deceased/public/injured, was never put to the appellants while recording their statements under Section 313 of the Code of Criminal Procedure, 1973 (in short, “the Cr.P.C.”).
State of Bihar, (iii) Jainul Haque v. State of Bihar ; (iv) Hardev Singh & Another v. On behalf of the State (NCT of Delhi) it was submitted that, as per the evidence, after the altercation, Babu Ram left the place with the appellants while extending threats that they shall teach a lesson to the other side and their supporters. Yet, they took no plea before the trial court or the High Court of any kind of prejudice caused to them. In support of his submissions, the learned counsel for the State cited decisions on two broad propositions, namely, (a) Conviction with the aid of Section 34 of the I.P.C can be recorded for the role of exhortation. Though exact location of Shri Krishan’s house is not disclosed in the site plan prepared in connection with the case, however, from his address, which is disclosed as D-291, Jahangir Puri, Delhi, it appears that his house is near Satpal’s house (which is D-294), and on same Street No.300.
To make it clear, one row of houses being House No.361 to 368 have a depth of 23 .10″ and these houses abut street No.400. The site plan shows that house No.366 of Babu Ram is back to back with house No.355 of Ramesh Chand and house No.354 of Mangat Ram is adjacent to the house of Ramesh Chand towards the west of house of Ramesh Chand. After the altercation, Babu Ram left that place, went to his house on Street No.400, fetched his gun and fired shots at the public present on Street No.300 from roof of one of the row houses, which, according to the prosecution, is house of Mangat Ram.
And to bring home the charge against the appellants, the prosecution case is that all the accused persons exhibited common intention as they simultaneously left the place where altercation was taking place to go to Babu Ram’s residence to pick up the gun. PW-2 (Mangat Ram), brother of deceased Anil, stated that Shri Krishan, his son Sunil, Babu Ram and his son Ravinder after altercation left the spot threat- ening Lala Satpal and his supporters that they would be taught a lesson; soon thereafter, all of them came to the roof of Babu Ram’s house and then jumped on to the roof of PW-2’s house, which shares back wall with Babu Ram’s house; and from there, Babu Ram opened fire while appellants were exhorting him not to spare Satpal or anyone who had supported him. He stated that accused Fauji @ Babu Ram first fired a shot in the air from his gun; then accused shouted that they would not spare anyone; thereafter, Shri Krishan and Sunil told Fauji to fire at persons whom they point at; Ravinder and Vijay also shouted that no one should be spared; simultaneously other accused also told Fauji to fire at persons whom they point at, so that no madadgar (i.e., supporter) of Satpal is spared; then Fauji fired, a bullet hit Anil @ Kala, the deceased, as also Mangat Ram; thereafter, accused Sunil and Ravinder pointed towards PW-8’s son Vijay and exhorted Fauji to fire at him; in consequence, Fauji fired at PW-8’s son, the shot hit him and he died; whereafter, Fauji started firing indiscriminately resulting in injuries to several persons. During cross-examination, Ashok Kumar (PW- 8) stated that,– he had witnessed the altercation; after the accused left, he went behind them; he, however, did not notice if any of his relatives were near the place of altercation; the accused went towards Babu Ram’s house whereas he went to his own house; after reaching his house, he put on his shoes, then, after 4/5 minutes, he heard gun shots; he immediately came out of his house to notice people running helter- skelter; the firing continued for about 20/25 minutes; he did not sustain any injury and no pellet came towards his house; he had no enmity with the accused prior to the incident, rather they had been attending each other’s functions; accused had cordial relations with the deceased Vijay; he had never appeared as a witness against the accused in any other case nor made any complaint against them; he and his family never favoured Satpal; his elder son, besides the deceased Vijay, was in the house at that time. In fact, during cross-examination, PW-2 stated that,– the altercation took place at a distance of about 10-12 paces from the place where he was lying on his cot; at that time, Sushil (his other brother) and Anil (the deceased) were inside the house; at the time of altercation between Lala and Shri Krishan, Ravinder, Vijay and Babu were not there; Babu Ram arrived at the place of altercation at about 2.45 pm and stayed for about 10 minutes; he cannot say as to how many persons came there; he cannot tell as to how many persons remained with Satpal, when Babu Ram left. A close examination of the statement of these witnesses would reveal that, though they disclose the presence of the accused-appellants with Babu Ram at the roof-top as also that they were instigating Babu Ram not to spare the supporters of Satpal, they are not specific and consistent about the two deceased (i.e., Anil and Vijay) being targeted by Babu Ram at the instigation of the present appellants. In such circumstances, the question that would arise is whether for the murder of the two deceased, namely, Vijay and Anil, could it be said that the appellants shared a common intention with the assailant Babu Ram so as to warrant their conviction under Section 302 I.P.C. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan.
It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.” (Emphasis supplied)
Case Title: SUNIL Vs. STATE OF NCT OF DELHI
Case Number: CRIMINAL APPEAL NO.688 OF 2011 (2023INSC840)
