DELHI HIGH COURT HOLDS CO-PERPETRATORS VICARIOUSLY LIABLE FOR OFFENCE OF MURDER JOINTLY INTENDED BY ALL THE APPELLANTS

In a recent case of Pankaj @Ishu vs State CRL.A. 1076/2019, Neutral Citation No.2022/DHC/005807 and two other connected matters, a two Judge Bench of the Hon’ble Delhi High Court comprising of Justice Mukta Gupta and Justice Anish Dayal passed a Judgment dated 23-12-2022 and observed that based on the principle of joint liability, under Section 34 of the Indian Penal Code 160 (IPC) (Acts done by several persons in furtherance of common intention) a co-perpetrator, who participates in an offence, would be equally liable for committing the said offence with the other perpetrators.

Facts

In the present case, the Complainant, Ajay Kumar along with his friend, Bharat (Deceased) went to a School in Janakpuri on 02-09-2011 to borrow Rs. 500/- from one, Deepak. When Deepak refused to give the money, the Complainant snatched his Sony Ericsson phone and gave it to his other friend, Mohd. Mohsin (PW-14), a Class-XI student. Thereafter, the Complainant and the Deceased returned to their colony and called up PW-14 from the Deceased’s phone, when PW-14 informed him that after they left, Deepak along with two other people came to his classroom and took the phone from PW-14 and further informed that the Accused-Ankit was searching for the Complainant and the Deceased.

Subsequently, when the Appellants, Pankaj, Ankit and Aman found the Complainant and the Deceased on the road, Ankit and Aman attacked them and started beating them. During the quarrel, Ankit stabbed the Deceased in his chest and wounded other parts of his body. Meanwhile, the Complainant managed to escape, but the Deceased succumbed to his injuries. A little later, when the Complainant took the Deceased to the hospital, he was declared brought dead at DDU Hospital.

Police Investigation

Thereafter, the Investigating Officer, PS Janakpuri recorded the statement of the Complainant and registered a First Information Report (FIR) No. 283 / 2011 dated 02-09-2011 under Section 302 IPC (Punishment for murder) read with Section 34 IPC (Acts done by several persons in furtherance of common intention).

The Post-Mortem of the Deceased was conducted on 03-09-2011 and the Post-Mortem Report gave detailed description of the deep wounds and external injuries caused to the Deceased on his chest, lower left arm, abdomen, kidney, etc. The cause of death was reported to be haemorrhage shock subsequent to stab injury to the Deceased’s kidney. It was further opined that the cut marks were possible by the knife used by the perpetrators.

Trial Court

Based on the Post-Mortem Report, a Chargesheet was filed against all the three Accused, namely, Pankaj, Ankit and Aman, under Sections 302 IPC, 323 IPC (Punishment for voluntarily causing hurt), 341 IPC (Punishment for wrongful restraint) read with 34 IPC. The Ld. Trial Court passed a Judgment dated 23-08-2019 and convicted all the three Accused for causing hurt to the Complainant and committing murder of the Deceased.

High Court

Aggrieved by the Trial Court Judgment dated 23-08-2019, the three Accused persons filed an Appeal before the Delhi High Court. The High Court passed a Judgment dated 23-12-2022 and made the following observations:

1) That the Accused-Pankaj contended that (i) he was only riding the motorcycle with the other Accused, (ii) he was not carrying any weapon, (iii) he was at a substantial distance from the crime scene, (iv) he did not attack the Complainant / the Deceased, (v) hence, mere presence of Accused-Pankaj at the crime scene cannot raise an inference that he shared a common intention with other Accused to commit murder.

2) That the Accused-Ankit contended that he was not present in the crime scene at the time of occurrence and that he did not have any weapon with him or any motive against the Deceased, so he denied all charges. He further contended that the Complainant’s testimony against him was not reliable as the Complainant was also allegedly not present at the place of occurrence.

3) That the High Court referred to various Supreme Court observations and reiterated that:

3.1 There are various modes of committing a crime, i.e. (a) by personally participating, (b) by instigating, (c) by facilitating or (d) by aiding the execution of a crime.

3.2 As per the principle of shared intent / common intent between two or more perpetrators of crime under Section 34 IPC, the other participants are also held as equal or joint perpetrators as that of the main or principal perpetrator. Section 34 IPC is reproduced below for easy reference:

34. Acts done by several persons in furtherance of common intention- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

3.3 In short, Section 34 IPC recognises the principle of vicarious liability, whereby, the other participants / assailants are also held liable for the acts or omissions committed by the main accused with whom such other assailants shared a common intention. Further, the provision does not envisage a separate independent act to be done by all the accused persons for becoming responsible for the ultimate crime, it only requires a common intention shared by all the accused to commit an offence.

3.4 Further, a common intention does not compulsorily require a pre-arranged plan, it may be developed on the spot or during the course of commission of the offence. The only test is to prove that such pre-planning preceded the act constituting the offence, which can be gathered from the proved facts.

3.5 In the present case, (i) the three Accused had come together on the motorcycle in search of the Complainant and the Deceased; (ii) the Accused-Pankaj followed them on bike when they tried to escape; (iii) the Accused-Pankaj did not do anything when the other two Accused, Ankit and Aman were beating up the Complainant and the Deceased and when Ankit stabbed the Deceased thrice and (iv) the Accused-Pankaj ran away on his motorcycle only after taking the other two Accused with him after completion of the offence.

3.6 As per Section 33 IPC, a criminal act in Section 34 IPC includes omission to act. Thus, culpability under Section 34 IPC cannot be excluded in respect of the Accused-Pankaj by merely claiming that he did not do anything, as he was standing at a distance, while the offence was being committed by the other Accused. The aforesaid facts clearly establish that the Accused Pankaj had preconceived / premeditated the result that would ensue in furtherance of the common intention shared with the other Accused, to hurt the Complainant and murder the Deceased.

3.7 Further, as per the Complainant’s testimony, the bike was recovered at the instance of the Accused-Pankaj and the knife was recovered at the instance of the Accused-Aman, blood stains were found on the Accused-Aman’s clothes and the Post-Mortem Doctor opined that the injuries to the Deceased, in all possibility, may have been caused by the said weapon.

Thus, based on the aforesaid observations, the High Court upheld the Trial Court Judgment dated 23-08-2019 and the conviction and sentence awarded to all the three Accused and thereby, dismissed the Appeals filed by the Accused persons.

Harini Daliparthy

Senior Associate

The Indian Lawyer