Dabu alias Devinder Singh vs State of Haryana

S. C. Datta, J.

This appeal is directed against the judgment and order dated 1.8.1986 passed by the learned Additional Sessions Judge (III), Faridabad by which the learned Judge was pleased to convict the accused Debu alias Devinder Singh son of Rup Chand and Devi Ram son of Ram Chand under Sections 323/34 of the Indian Penal Code and to sentence them to undergo imprisonment for a period of one year each. He was further pleased to convict them under Sections 332 and 353 of the Indian Penal Code and was also pleased to sentence them to undergo rigorous imprisonment for a period of two years each for the offence under Section 332 of the than Penal Code. No separate sentence was, however, passed for the offence under Section 353 of the Indian Penal Code on the ground that the offences under Sections 332 and 353 of the Indian Penal Code are overlapping in nature. It was further ordered that the substantive sentences shall run concurrently.

The prosecution case was that on 12.2.1985 A.S.I. Dhara Singh (PW 6) was proceeding along with Head Constable Raghubir Singh (PW5) and constable Madan Lal (PW7) when a few workers complained to them near Indian Tool Company, Indira Colony, Faridabad that the accused persons along with Rajbir Singh son of Band had run away towards the side of Bagichi, after assaulting them. The police party then rushed towards the said ''Bagichi'' and noticed the three accused persons sitting there. On noticing the police they tried to flee but the police party gave them a chase. The absconding accused Rajbir felled Head Constable Raghubir Singh on the ground and twisted his testicles. Head Constable Raghubir Singh cried out of pain and this attracted the other policemen accompanying him. They rushed to Head Constable Raghubir Singh. On seeing them arriving the accused Debu and Devi Ram succeeded in running away from the spot. The absentee accused Rajbir Singh was apprehended by A.S.I. Dhara Singh who produced him before Inspector Jagjit Singh. An F.I.R. was lodged with N.I.T. Faridabad on the same day at about 6.15 p.m. and a case was registered. The police took up investigation and on completion of investigation submitted chargesheet against all the three accused persons.

The case was committed to the court of Sessions and the same was assigned to the learned Additional Sessions Judge (III) for trial. Out of the three accused persons, accused Rajbir Singh son of Banti is absconding. So the case proceeded against the present appellants Debu alias Devinder Singh and Devi Ram. Charges under Sections 307/332/353/34 of the Indian Penal Code were framed against the accused persons.

The learned Additional Sessions Judge found that no offence under Section 307 of the Indian Penal Code was made out and accordingly he acquitted the present appellants of the said charge. But the learned Additional Sessions Judge was pleased to convict the present appellants under Sections 323/34 and under Sections 332/353 of the Indian Penal Code and sentenced them as mentioned above.

Being aggrieved by the order of conviction and sentence passed upon them, the appellants have come up in appeal.

It is contended on behalf of the appellants that the learned Additional Sessions Judge was wrong in convicting the appellants in as much as the principal accused in this case is absconding and the present appellants had played no part in the manner of assaulting the police party on the day of the occurrence. During argument the learned lawyer appearing for the present appellants submits that a court before fastening vicarious liability may satisfy itself as to the prior meeting of minds of the principal culprit and his companions who were sought to be constructively made liable in respect of every act committed by the former. He submits that there is no material to show that the present appellants had common intention to commit the crime as alleged by the prosecution. Accordingly the learned Advocate submits that the appellants should be acquitted.

According to the prosecution, the police party was proceeding in connection with an enquiry when some workers near Indian Tool Company, Indira Colony Faridabad complained to them that three persons namely Rajbir Singh son of Banti Debu alias Devender Singh and Devi Ram son of Ram Chand had assaulted them and ran away towards the side of ''Bagichi''. The police party ran towards the said persons and succeeded in spotting the three persons who had allegedly assaulted the workers of Indian Tool Company. It is said that the accused Rajbir Singh felled Head Constable Raghubir Singh, caught hold of his testicles and twisted the same and as a result Head Constable Raghubir Singh cried out of pain and later became unconscious. The other policemen of the party rushed to help Head Constable Raghubir Singh and on seeing them arriving the present appellants Debu and Devi Ram fled away. It may be mentioned that the accused Rajbir Singh is absconding and as such he is not facing the trial. The other two accused persons namely the present appellants faced the trial. They have been convicted with the aid of Section 34 of the Indian Penal Code on the ground that they shared the common intention with the principal accused Rajbir Singh. I notice from the evidence of the witnesses produced by the prosecution that no overt act had been done by the present appellants. They had simply accompanied the principal accused Rajbir Singh when the alleged occurrence took place. The police party was allegedly proceeding to enquire into an incident when some workers of Indian Tool Company complained of commission of some offence by the present appellants including Rajbir Singh. It transpires from evidence that it is Rajbir Singh who caught hold of the testicles of Head Constable Raghubir and twisted them. As a result the said Head Constable got the injury in his private parts but no overt act on the part of the present appellants had been complained by any of the witnesses. The Supreme Court in Dharam Pal and others v. State of Haryana, AIR 1978 SC 1492 held that a criminal court fastening vicarious liability must satisfy itself as to the prior meeting of the mind, of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender. On perusal of the entire evidence on record it does not appear that the present appellants shared the common intention with the principal accused Rajbir Singh. The present appellants were allegedly accompanying the principal accused. The common intention denotes action in concert and necessarily postulates a prearranged plan or prior meeting of minds and an element of participation in action. The ingredients of common intention being absent in this case, it cannot be said that the present appellants are in any way guilty of the alleged offence.

The witnesses examined by the prosecution in this case are mainly doctors and police officials besides a Draftsman. The doctors speak of injury of the person of Head Constable Raghubir Singh. There is no independent eye witness of the locality though it has been stated that some workers of the Indian Tool Company complained of an incident before the present occurrence. No explanation has been given as to why none of the workers was examined by the prosecution to substantiate the allegations against the present appellants. The incident allegedly took place near the aforesaid company. This being the position and there being no material to show that the present appellants shared the common intention with the principal accused, it cannot be said that they are guilty of the offences charged. In that view of the matter, I find that the appellants have not been rightly convicted by learned Additional Sessions Judge. So they are entitled to be acquitted.

In view of the aforesaid findings, the appeal succeeds and order of conviction and sentence passed by the learned Additional Sessions Judge, Faridabad is hereby set aside, and as a result appellants are acquitted of the charges.