Supreme Court of India
RAMESHWAR AND ANOTHER versus STATE OF MADHYA PRADESH on 16 August 2019
[2019] 11 S.C.R. 363
RAMESHWAR AND ANOTHER
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 2448 of 2009)
AUGUST 16, 2019
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Penal Code, 1860: s.302 r/w s.34 – Conviction and lifeimprisonment – Prosecution case was that on the fateful day,appellant no.1 armed with farsa (axe) along with five other accusedpersons including appellant no.2 armed with rifles and danda camenear the house of the victim-deceased – Appellant no.1 attackedthe deceased with farsa and exhorted others to kill the deceased –Deceased ran out of the courtyard – Four co-accused standing atthe door of adjacent house caught hold of the deceased – Motherof deceased tried to save the deceased and in the process receivedinjuries near her ear – Appellant no.2 fired gun shot at the deceasedwhich hit his back – Appellant no.1 took gun from accused no.3and fired at the deceased – When villagers came, all the accusedfled away from the spot – Trial court convicted appellant no.1 and2 under s.302 r/w s.34 while it acquitted all the other co-accused –High Court affirmed the conviction and sentence of life imprisonmentholding that even though there were contradictions in the statementof PW-1-complainant (wife of deceased) recorded in the court andher statement in the FIR, however, since the prosecution was able toprove that the appellants shared the common intention to committhe murder of the deceased, the court can invoke s.34 and in sucha situation, it was not necessary for the prosecution to prove thatthe gun shot injuries which resulted in the death of the deceasedwas caused by which of the two appellants – On appeal, held: Toinvoke s.34, it must be established that the criminal act was done bymore than one person in furtherance of common intention of all – Itmust, therefore, be provided that there was common intention on thepart of several persons to commit a particular crime; and infurtherance of that common intention, the crime was actuallycommitted by them – The presence of appellant No.2 was establishedby consistent evidence of the eye-witnesses – Admittedly, appellant
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ANo.2 was armed with rifle and, thus, shared the common intentionacting in concert with appellant No. 1 – When appellant No.2 hasbeen proved to have acted in furtherance of the common intention,his conviction under s.302 was rightly affirmed by the High Courtby invoking the aid of s.34 – Since appellant No.1 passed awayduring pendency of the appeal, and, therefore, appeal against himBis dismissed as abated.
Dismissing the appeal, the Court
HELD : 1.As per the post-mortem certificate, the deceasedsustained one gun shot injury, that is, circular hole of 1.5 cm onChis back. PW-15-the Investigating Officer had seized one .12 borecartridge and one .12 bore empty cartridge from the spot. PW-15also seized two plastic pieces which were emitting the smell ofgun power and these material objects were seized under seizurememo. Insofar as accused No.3 (since acquitted) who is said tohave fired a gun shot, none of the witnesses have stated as toDwhich part of the body of the deceased the said gun-shot was hit.Considering the fact that there was no cogent evidence againstaccused No. 3, the trial court granted benefit of doubt andacquitted him. As rightly held by the High Court, the evidenceagainst the appellants-accused is not identical as against the co-Eaccused No. 3 who was acquitted. [Para 11] [368-G-H; 369-A-B]
2. As held by the High Court, even assuming that appellantNo.1 has fired gun shot, the conviction of appellant No.2 can besustained with the aid of Section 34 IPC. To invoke Section 34IPC, it must be established that the criminal act was done byFmore than one person in furtherance of common intention of all.It must, therefore, be provided that (i) there was commonintention on the part of several persons to commit a particularcrime; and (ii) in furtherance of that common intention, the crimewas actually committed by them. In the instant case, the presenceof appellant No.2 was established by consistent evidence of theGeye-witnesses viz. PWs 1, 2, 6 and 7. Admittedly, appellant No.2was armed with rifle and thus shared the common intention actingin concert with accused-appellant No. 1. When appellant No.2has been proved to have acted in furtherance of the commonintention, his conviction under Section 302 IPC was rightly H
affirmed by the High Court by invoking the aid of Section 34IPC. There is no reason for warranting interference with theimpugned judgment. The conviction of appellant No.2 underSection 302 IPC read with Section 34 IPC and the sentence oflife imprisonment imposed upon him is affirmed. Since theappellant No.1 has passed away, the appeal against him isdismissed as abated. [Paras 12-13] [369-B-F]
CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2448 of 2009.
From the Judgment and Order dated 25.06.2008 of the High Courtof Madhya Pradesh, Jabalpur Bench, Gwalior in Criminal AppealNo. 275 of 1995.
Nagendra Rai, Sr. Adv., Rajesh, Advs. for the Appellants.
Rahul Kaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi SatyapriyaSatyam, Siddharth Chakravorty (for Mrs. Swarupama Chaturvedi,),Advs. for the Respondent.
The Judgment of the Court was delivered by
R. BANUMATHI, J.
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1. This appeal arises out of the judgment dated 25.06.2008 inCriminal Appeal No.275 of 1995 passed by the High Court of MadhyaPradesh at Gwalior Bench in and by which the High Court has affirmedthe conviction of both the appellants (accused No.6 and 5) under Section302 IPC read with Section 34 IPC and the sentence of life imprisonmentimposed upon them along with fine of Rs.5,000/- each.
2. Brief facts which led to filing of this appeal are:- On 08.01.1984 at about 10:00 am, complainant-Subhadra(PW-1), wife of deceased Ram Autar was cooking food in her houseand deceased Ram Autar was taking the meals. After taking meals,deceased went out to the courtyard of the house for drinking water. Atthat time, appellant No.1-Rameshwar with whom the deceased had rivalrycame to the courtyard armed with a farsa (axe) and five other accusedpersons armed with rifles and danda were also standing at the door ofone Kedar Seth, neighbour and amongst them, appellant No.2-Balaramwas also there. Appellant No.1 exhorted others to kill the deceased Ram A
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AAutar and thereafter, appellant No.1 attacked the deceased with farsa.Deceased ran out of the courtyard. Four persons standing at the door ofKedar Seth caught hold of deceased. Appellant No.1-Rameshwar andaccused No.1-Ram Bharosey came there and joined the other co-accused. At that time, Tejabai, mother of deceased came and laid downon Ram Autar in order to save him. Accused separated Tejabai andBwhen Tejabai tried to catch hold of farsa from accused Rameshwar,she sustained injury near her ear. Case of prosecution is that accusedRameshwar and Ram Bharosey caught hold of deceased and accusedBalaram fired gun shot at deceased Ram Autar which hit the back ofdeceased due to which deceased fell down sustaining the gun shot injury.CAccused Rameshwar also is said to have taken the gun from accusedNo.3-Umacharan and fired at deceased Ram Autar due to which,deceased Ram Autar sustained injuries at the hands of accusedRameshwar also. When the villagers came, all the accused fled awayfrom the spot. On the complaint lodged by PW-1-Subhadra, wife ofdeceased, FIR in Crime Case No.08/84 was registered under SectionsD452, 147, 148, 302, 302 read with Section 149 IPC and under Sections 11and 13 of the M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam,1981.
3. Dr. P.S. Tomar, PW-10 had conducted the post-mortem andfound the following injuries on the dead body of deceased Ram Autar:-E
(i) One circular hole of 1.5 cm on the back of deceased, situatedin the middle of spinal cord;
(ii) Injury in the muscle;
(iii) Spinal bone of deceased was fractured;F
(iv) Injury in lower blood vein.
Five pellets were found inside the spinal cord of deceased and allthese pellets were sealed and handed over to Police. PW-10 issued post-mortem certificate (Ex.P6) opining that deceased died of the injuriesand injury No.1 was sufficient to cause death. Appellant No.1-RameshwarGwas arrested on 23.04.1984 and on being interrogated, he gave thestatement which led to recovery of axe in the gonad under Ex.-P7-seizure memo. After completion of investigation, charge sheet was filedagainst the appellants and other four accused in the aforesaid offence.
4. In order to prove the guilt of the accused, prosecution hasexamined PW-1-Subhadra, wife of deceased, PW-2-Ram Narayan, fatherof deceased, PW-6-Katori Bai and PW-7-Ram Gopal and the neighboursall of whom have spoken about the occurrence and also about the overtact of the accused. Prosecution has also examined doctor who conductedautopsy and other official witnesses. Upon consideration of the oralevidence, the trial court held that the oral evidence is amply corroboratedby the medical evidence and also the recovery of axe at the instance ofappellant No.1-Rameshwar. The trial court held that the prosecutionhas established the guilt of the accused beyond reasonable doubt andconvicted appellant No.1-Rameshwar and appellant No.2-Balaram underSection 302 IPC read with Section 34 IPC and sentenced each of themto undergo life imprisonment along with fine of Rs.5,000/- each. Insofaras offence under M.P. Dakaiti Aur Vyapharan Prabhavit KshetraAdhiniyam is concerned, the trial court held that there is no evidence onrecord to prove that the incident was done with the help of any dacoitand so, they were acquitted under the Act. The trial court acquitted allother accused from all the charges. Being aggrieved, the appellants havepreferred appeal before the High Court.
5. The High Court held that even though there are contradictionsin the statement of PW-1 recorded in the court and her statement in theFIR, since the prosecution has proved that the appellants have sharedthe common intention to commit the murder of the deceased, the courtcan invoke Section 34 IPC and in such a situation, it was not necessaryfor the prosecution to prove that the gun shot injuries which has resultedin the death of the deceased was caused by which of the two appellants.The High Court affirmed the conviction of the appellants under Section302 IPC read with Section 34 IPC and the sentence of life imprisonmentimposed upon them. Being aggrieved, the appellants are before us.
6. During the pendency of the appeal before this Court, appellantNo.1-Rameshwar passed away and the appeal against him stands abated.
7. On behalf of appellant No.2, we have heard the submission ofMr. Nagendra Rai, learned senior counsel. We have also heard Mr.Rahul Kaushik, learned counsel on behalf of the respondent and perusedthe impugned judgment and other materials on record.
8. Learned senior counsel appearing on behalf of appellant No.2has submitted that the High Court erred in affirming the conviction of AB
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Athe appellant No.2-Balaram by invoking Section 34 IPC. It was submittedthat there was no clear evidence for arriving at the conclusion that therewas any prior concert or meeting of mind before the commission ofoffence. It was further submitted that the deposition of the eye-witnessesviz. PW-1-Subhadra, PW-2-Ram Narayan, PW-6-Katori Bai and PW-7-Ram Gopal are inconsistent and contradictory to each other and whileBso, the trial court erred in basing the conviction upon such inconsistentevidence and the High Court erred in affirming the conviction and theimpugned judgment convicting appellant No.2-Balaram is not sustainable.
9. Learned counsel appearing on behalf of the respondent-Statehas submitted that upon appreciation of oral evidence of the eye-witnessesCand other evidence, the High Court rightly affirmed the conviction of theappellants and the impugned judgment warrants no interference.
10. Insofar as the contention that there are contradictions betweenthe evidence of PW-1 made before the court and her statement in DehatiNalishi (Ex.-P1), it was submitted that in Ex.-P1-Dehati Nalishi, PW-1Dhas stated that there were three gun shots - one by accused Rameshwar,one by accused Balaram which caused injury on the back of the deceasedand one by accused Umacharan which caused injury on the body of thedeceased. In their evidence before the court, PWs 1 and 2 have statedthat appellant No.1 had fired gun shot upon the deceased; whereas,EPWs 6 and 7 have stated that appellant No.2 had fired the deceasedwith his rifle. The trial court held that such contradictions would notaffect the prosecution case because in Dehati Nalishi, PW-1 has clearlystated that appellant No.2-Balaram had fired upon the deceased fromhis rifle. The statement of PW-1 in Ex.-P1 appears to be more reliablebecause her statement in Ex.-P1 is corroborated by the statement ofFPWs 6 and 7. As per the evidence of PWs 6 and 7, appellant No.2armed with rifle was present at the spot and that there were two gunshots at the time of the incident which were fired by accused Rameshwarand Balaram.
11. As per Ex.-P6-post-mortem certificate, deceased Ram AutarGsustained one gun shot injury, that is, circular hole of 1.5 cm on his back.Ram Lakhan (PW-15)-the Investigating Officer had seized one .12 borecartridge and one .12 bore empty cartridge from the spot. PW-15 alsoseized two plastic pieces which were emitting the smell of gun powerand the above material objects were seized under Ex.-P11-seizure memo.HInsofar as accused No.3-Umacharan (since acquitted) who is said to
have fired a gun shot, none of the witnesses have stated as to which partof the body of the deceased the said gun-shot was hit. Considering thefact that there was no cogent evidence against Umacharan, the trialcourt granted benefit of doubt and acquitted him. As rightly held by theHigh Court, the evidence against the appellants-accused is not identicalas against the co-accused Umacharan who was acquitted.
12. Learned senior counsel for appellant No.2 mainly urged thatthere are contradictions in the evidence of the witnesses as to who firedgun shots on deceased Ram Autar. As held by the High Court, evenassuming that appellant No.1-Rameshwar has fired gun shot, theconviction of appellant No.2-Balaram can be sustained with the aid ofSection 34 IPC. To invoke Section 34 IPC, it must be established thatthe criminal act was done by more than one person in furtherance ofcommon intention of all. It must, therefore, be provided that (i) therewas common intention on the part of several persons to commit a particularcrime; and (ii) in furtherance of that common intention, the crime wasactually committed by them. In the present case, the presence of appellantNo.2 has been established by consistent evidence of the eye-witnessesviz. PWs 1, 2, 6 and 7. Admittedly, appellant No.2 was armed with rifleand thus shared the common intention acting in concert with accusedRameshwar. When appellant No.2 has been proved to have acted infurtherance of the common intention, his conviction under Section 302IPC was rightly affirmed by the High Court by invoking the aid of Section34 IPC. We do not find any reason for warranting interference with theimpugned judgment.
13. In the result, the conviction of appellant No.2-Balaram underSection 302 IPC read with Section 34 IPC and the sentence of lifeimprisonment imposed upon him is affirmed and this appeal is dismissedqua appellant No.2. Since the appellant No.1-Rameshwar has passedaway, the appeal against him is dismissed as abated. The appellant No.2shall surrender within a period of six weeks from today to serve theremaining period of sentence, failing which he shall be taken into custody.
Devika Gujral
Appeal dismissed.
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