STATE OF M.P. versus RAMJI LAL SHARMA & ANR. on 9 March 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 13.12.2018 passed by the High Court of Madhya Pradesh,Bench at Gwalior in Criminal Appeal No.339 of 2006, by which, theHigh Court has allowed the said appeal and has acquitted respondentNo.1 and 2 herein – original accused No.1 and 3, for the offencesEpunishable under Section 302 read with Section 34 of the IPC, by givingbenefit of doubt, the State of Madhya Pradesh has preferred the presentappeal.

2. As per the prosecution case sometime prior to 8:30 in themorning of 17.01.2002, one Devendra, son of Bhagirath, brother ofFdeceased Munshilal, went to the house of accused Ramjilal for demandingmoney for grinding of wheat in the flour mill and accused persons Mukesh(A-4) and Brijesh (A-3) met him. When Devendra demanded money,then, accused No.3 and accused No.4 assaulted him with kicks andpunches. Somehow, he rescued himself. The said incident was broughtto the notice of the complainant Laxminarayan. The brother of Devendra,Gnamely, Ramgopal and father Bhagirath, went to the house of accusedpersons for enquiring about the scuffle. All the accused were goingtowards the house of the deceased Munshilal. While seeing them, thecousin brother of deceased namely Laxminarayan also reached the door H

H

of Munshilal. The accused-Mukesh was carrying 12 bore double barreledfirearm, accused-Kallu Brijkishore was carrying 12 bore single barreledfirearm and accused Brijesh alias Sadhu alias Brijnandan and Ramjilalwere carrying axe. At that time, the deceased was returning after urinatingin Goda of Ramswaroop. All the accused persons surrounded him.Accused-Ramjilal hit with the axe on Munshilal, which was obstructedand held by the deceased and thereafter, accused Mukesh fired from hisfirearm. The accused-Kallu also fired from his firearm. The deceasedMunshilal fell down in the Goda of Ramswaroop. The entire incidentwas seen by eye witnesses including the original complainant –Laxminarayan (PW-1). When Laxminarayan, Devendra and Surenderput Munshilal on the Cot (charpai) to take him to the Police Station butMunshilal died while he was being taken to the Police Station. Thecomplainant Laxminarayan got recorded the First Information Report ofthe incident in the morning at 9:20 against all the four accused for theoffences punishable under Sections 302, 307, 34 of IPC and Section3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention ofAtrocities) Act. The Investigating Officer initiated the investigation andrecorded the statements of the witnesses. He prepared the punchnama.He collected the post mortem report/medical evidence. After conclusionof the investigation, the Investigating Officer filed a chargesheet againstall the accused for the offences punishable under Sections 302, 307 and34 of the IPC and Section 3(2)(5) of the Scheduled Caste and ScheduledTribe (Prevention of Atrocities) Act. As the case was exclusively triableby the Court of Sessions, the case was committed to the Court of Sessions.The accused pleaded not guilty and therefore, all of them came to betried by the learned Trial Court for the aforesaid offences.

3. To prove the case, the prosecution examined five eye witnessesincluding PW1, PW3 and PW5. The prosecution also examined Dr. R.K.Taneja as PW6. The Investigating Officer was also examined by theprosecution. After closure of the evidence on the side of the prosecution,further statements of accused under Section 313 of Cr.PC were recorded.Their case was of total denial. That thereafter, on appreciation of evidenceon record oral as well as the documentary, the learned Trial Court heldthat all the accused shared the common intention to kill the deceased.On appreciation of evidence on record, the learned Trial Court held allthe accused guilty for the offences punishable under Section 302 readwith Section 34 of the IPC and sentenced all the accused to undergo lifeimprisonment with a fine of Rs.5,000/- each.

AB

C

DE

F

G

H

A3.1 Feeling aggrieved and dissatisfied with the impugned judgmentand order of conviction the accused preferred Criminal Appeal No.339/2006 before the High Court. By the impugned judgment and order, theHigh Court has allowed the appeal preferred by respondent No.1 and 2herein – original accused No.1 and 3, by giving them benefit of doubtand by observing that there is a contradiction in the ocular and the medicalBevidence and therefore their presence itself is doubtful.

A

3.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court acquitting respondent No.1 and 2herein – original accused No. 1 and 3, by giving them benefit of doubt,the State has preferred the present appeal.C

4. Having heard learned counsel appearing on behalf of therespective parties at length and on going through the impugned judgmentand order passed by the High Court, it appears that while acquitting theaccused the High Court has observed in paragraph 14 as under: -

D“14. After hearing the arguments and going through the record,two things are apparent; one, involvement of appellant No.1Ramjilal Sharma and Appellant No.3 Brajmohan @ Kallu is notmade out as ocular evidence is not corroborated by medicalevidence given by Dr. Taneja (P.W.6) and secondly, as far asappellant No.2 Brijkishore Sharma @ Kallu is concerned, in viewEof specific finding given by Dr. R.K.Taneja (P.W.6), that cause ofdeath was homicidal and it occurred because of injury in femoralartery as well as gun shot injury in lungs, it can not be said thatfemoral artery is not a vital organ. Thus, it is apparent that Kallushared common intention, whereas presence of appellant No.1Fand 3 is doubtful. Therefore, appellants No.1 and 3 should havebeen extended benefit of doubt which has been wrongly deniedby the trial court. When no independent witnesses are examinedand medical evidence is not corroborated by the prosecution story,then conviction was reversed as held by the Hon’ble SupremeCourt in the case of Lilia Vs. State of Rajasthan as reported inG(2014) 16 SCC 303. Therefore, this court finds that this is a fitcases to record acquittal in favour of appellants No.1 Ramjilaland No.3 Brijnandan @ Brijesh Sharma. As far as conviction ofappellant No.2 under Section 302 with the aid of Section 34 ofIPC is concerned, it is clearly made out.”

H

Except the above findings/reasoning no other findings are recordedby the High Court.

4.1 From the impugned judgment and order passed by the HighCourt, it appears that what has weighed with the High Court is thatthere is discrepancy in the ocular evidence as well as the medical evidenceand/ or the ocular evidence is not corroborated by the medical evidenceand therefore, the presence of accused No.1 and 3 is doubtful. Accordingto the High Court, eye witnesses PW1, PW3 and PW5 stated thataccused No.1 and 3 were having axe in their hands, they attacked thedeceased by their axe, however, as per the medical evidence no suchinjury by axe is found. However, it is required to be noted that PW1,PW3 and PW5 are all eye witnesses to the incident and they are believedso far as the other accused are concerned. It is also to be noted thatright from the very beginning of filing/lodging the FIR the names of allthe accused were disclosed. Accused No.1 and 3 were also named inthe FIR. All the eye witnesses are common in saying that accused No.1and 3 also came along with other accused. Therefore, their presencehas been established and proved by the prosecution. Even on going throughthe deposition of PW1, his case was that Ramjilal – accused No.1 firsthit Munshilal with an axe which was caught by Munshilal with his hand.If that be so naturally there could not be any injury on the hand ofMunshilal. Even PW5, who is also one of the witnesses, has also deposedand stated even in cross-examination that Ramjilal hit axe and thatMunshilal caught head of axe, therefore, axe could not hit Munshilal.Therefore, as such it cannot be said that there are any materialcontradictions in the ocular and the medical evidence of which benefitof doubt should be given to the accused.

4.2 Even otherwise once it has been established and proved bythe prosecution that all the accused came at the place of incident with acommon intention to kill the deceased and as such, they shared thecommon intention, in that case it is immaterial whether any of the accusedwho shared the common intention had used any weapon or not and/orany of them caused any injury on the deceased or not.

4.3 As such the learned Trial Court in paragraph 35 gave specificfindings on the common intention shared by all the accused to kill thedeceased. However, the High Court has not at all considered the aforesaidvital aspect of the case. The High Court has also not discussed and/orre-appreciated the entire evidence on record and has acquitted accused AB

C

D

E

F

G

H

ANo.1 and 3 by simply observing that there are contradictions in the ocularand medical evidence, and therefore the presence of accused No.1 and3 is doubtful and therefore, they are entitled to the benefit of doubt. Asobserved hereinabove as such there are no material contradictionsbetween the ocular and medical evidence. The presence of all the accusedhave been established and proved and the prosecution has also beenBsuccessful in proving that all the accused including accused No.1 and 3shared the common intention. Therefore, as such the learned Trial Courtrightly convicted all the accused including accused No.1 and 3 for theoffences punishable under Section 302 read with Section 34 of the IPC.The High Court has erred in reversing the conviction and acquittingCaccused No.1 and 3 – respondent No.1 and 2 herein, by giving them thebenefit of doubt.

5. In view of the above and for the reasons stated above thepresent appeal succeeds. The impugned judgment and order passed bythe High Court of Madhya Pradesh in Criminal Appeal No.339/2006 inDso far as acquitting respondent No.1 and 2 herein – original accusedNo.1 and 3 for the offences punishable under Section 302 read withSection 34 of the IPC is hereby quashed and set aside. The judgmentand order passed by the learned Trial Court convicting respondent No.1and 2 herein - original accused No.1 and 3 for the offences punishableunder Section 302 read with Section 34 of the IPC is hereby restored.

EThe sentence imposed by the learned Trial Court is also restored. Nowrespondents herein – original accused to undergo the remaining sentenceas per the judgment and order of conviction and sentence passed by thelearned Trial Court. Respondent No.1 and 2 to surrender before theconcerned Jail authorities or Court within a period of four weeks fromFtoday. The present appeal is accordingly allowed.

Bibhuti Bhushan Bose

Appeal allowed.

G

H