Mahesh & Anr vs State Of Madhya Pradesh

MAHESH & ANR. ..... Appellant (s)

VERSUS

STATE OF MADHYA PRADESH ..... Respondent(s)

O R D E R

1. This appeal is directed against the judgment and order dated

16.11.2007 passed by the Madhya Pradesh High Court,

Jabalpur Bench at Gwalior in Criminal Appeal No. 388 of 2001.

By the aforesaid judgment and order, the Division Bench of the

High Court has not only confirmed the order of conviction and

sentence of Shri Ramdutt, who was convicted by the Trial Court

under Section 302 of the Indian Penal Code and sentenced him

to undergo imprisonment for life and for 3 years rigorous

imprisonment under the Arms Act but also set aside the order of

acquittal passed by the Trial Court in the cases of Mahesh and

Kanhaiyalal.

2. The High Court by passing the impugned judgment and order

Page 1 of 12

has convicted both the aforesaid accused persons under Section

302 read with Section 34 of the Indian Penal Code and

sentenced them to undergo rigorous imprisonment for life. The

sum and substance of the aforesaid order of conviction and

sentence is that all the three accused persons have now been

convicted under Section 302 read with Section 34 of the Indian

Penal Code and, therefore, all of them have been sentenced to

undergo rigorous imprisonment for life.

3. The prosecution story in brief is that on 1.11.1993, the

complainant Badri Lal(PW 1) along with Rambabu (PW 3), son of

deceased Kirori, went to their chilly field to water the same. The

said field was adjacent to the field of Mahesh and Ramdutt who,

at that point of time, were watering their field. When asked by

the complainant and Rambabu about watering their field,

Mahesh and Ramdutt told them that they can water their field

only after watering of their field is completed by them.

4. It is alleged that on hearing this, PW 1 and PW 3 came back to

their village to go back again in the afternoon, when while trying

to release water to their field, they were assaulted by Ramdutt

and Mahesh. It is alleged that after the said incident, Ramdutt

and Mahesh came back running to the village and PW 1 and PW

3 also came behind them. When PW 1 and PW 3 reached the

Page 2 of 12

door, they heard the sound of gunshot fire. On hearing the

sound, they ran towards the said direction, when on way, they

saw Ramdutt and Mahesh running with guns in their hands. It

is alleged that when Ramdutt and Mahesh saw PW 3, Mahesh

fired a gunshot at Rambabu (PW 3) who saved himself by lying

down. Thereafter, PW 1 and PW 3 reached in front of the door

of Ramnarayan and Devi Prasad when PW 1 saw the body of his

younger brother Kirori, lying dead on the ground, being hit by a

gunshot which had hit him on chest and stomach. The body

was surrounded by Deviprasad, Ramnath, Kirori's wife Malti,

Rambabu's wife Sunita and other members, daughters-in-law

and daughters.

5. At that stage, Malti told PW 1 that on hearing the news of

altercation at the field, Kirori was going towards the field when

Ramdutt, Mahesh and Kanhaiya who were standing at their

door and that Ramdutt, with the licenced single barrel gun of

his father Kanhaiya, fired a shot at Kirori which had hit him

near the abdomen as a result of which Kirori fell down and died.

6. The First Information Report was filed by PW 1 at about 3.15

p.m. at the Police Station which is 14 kms away from the

village. On receipt of the First Information Report, a criminal

case was registered and the police started investigation, during

Page 3 of 12

the course of which all the three accused persons were arrested.

Charge-sheet was filed as against all the three accused persons.

Pursuant to filing of chargesheet, trial was held during the

course of which several witnesses were examined by the

prosecution. The defence also examined one witness in support

of their defence. The statements of all the three accused

persons were recorded under Section 313 of the Cr P.C. and

thereafter, the learned Trial Court, by the judgment and order

passed on 9.8.1999, convicted Ramdutt under Section 302 IPC

and passed an order sentencing him to life imprisonment and 3

years rigorous imprisonment under Arms Act, respectively. So

far as the other two persons are concerned, namely Mahesh and

Kanhaiya Lal, the present appellants, the Trial Court acquitted

them on the ground that there had been some embellishment in

the prosecution case like the allegation that the said accused

persons holding the hand of the deceased at the time of firing

upon them by Ramdutt.

7. Ramdutt (A1) and the State filed appeals before the High Court.

Both the said appeals were taken up together and the same

were disposed of by the common order by the High Court

whereby the High Court not only upheld the order of conviction

passed against Ramdutt but also passed a similar order of

Page 4 of 12

conviction and sentence as against Mahesh and Kanhaiya Lal

who were acquitted by the trial court.

8. Being aggrieved by the aforesaid order of conviction by the High

Court, Mahesh and Kanhaiya Lal, appellants herein, have filed

the present appeal in which notice was issued. So far as the

Ramdutt - first accused is concerned, he has not filed any

appeal and, therefore, it appears that he has accepted the order

of conviction and sentence passed by the trial court and then,

affirmed by the High Court. The present appeal, therefore,

relates to the order of conviction and sentence passed against

Mahesh and Kanhaiya Lal who are appellants before us.

9. We have heard the learned counsel appearing for the parties on

this appeal who have taken us through the entire evidence on

record as also the contents of the two judgments passed by the

Trial Court and also by the High Court.

10.The contention that is raised by the learned counsel appearing

for the appellants is that in the First Information Report which

was filed by PW 1 at the earliest point of time after the incident,

the role now attributed to the appellants herein were not

mentioned at all and, therefore, there could not have been an

order of conviction and sentence as against the two appellants.

Page 5 of 12 It was also submitted by him that the statements of the alleged

eye-witnesses were recorded by the police after about 8 days of

the occurrence and, therefore, there was enough scope to make

out a make believe story and also to put in an embellishment

and improvement relying on which the appellants are sought to

be convicted.

11.According to the learned counsel appearing for the appellants,

there were number of independent witnesses who were allegedly

present at the time of occurrence of the incident, but none of

them was examined and, therefore, the High Court should have

doubted the manner in which a specific role is being attributed

to the appellants herein. The learned counsel submits that

there was no enmity between the parties and, therefore, there

was no motive for commission of the crime, at least by the

present appellants. He has also submitted that there are two

versions which are sought to be raised and, therefore, the

benefit of the same should go to the appellants herein.

12.We have considered the aforesaid submissions which were

refuted by the learned counsel appearing for the respondent.

She has drawn our attention to the evidence on record to

submit that some of the translation of the deposition included

in the paper book prepared by the appellants is not truly

Page 6 of 12

reflecting the accurate statement made by the persons in the

Court.

13.In order to appreciate the aforesaid contentions, we have also

examined the original records and on such perusal, we find that

some of the English translations which have been placed before

us by filing an additional paper book are indeed not the true

reflection of the statements made by the witnesses before the

Court.

14.Be that as it may, we would like to examine each of the

contentions raised by the learned Counsel appearing for the

appellants in the light of the records. So far as the first

contention regarding informant not stating anything about the

role of the appellants in the First Information Report is

concerned, we find that the aforesaid First Information Report

was submitted by PW 1 who was not an eye-witness to the

incident. Although it has come in evidence that he was

informed about the incident by PW 2, PW 4 and PW 5

immediately on his reaching the place of occurrence of the

incident, yet since he was not the eye-witness to the incident, he

may not have stated the said fact in the First Information Report

for which it cannot be said that the entire prosecution case

should falter. Besides, it is an established law that so far as the

Page 7 of 12

First Information Report is concerned, it is only a report

submitted informing the police about the commission of the

crime. It is not required that the said First Information Report

should contain a detailed and vivid description of the entire

incident. Further, it cannot be expected from the informant,

especially, when the informant is a relative of the

injured/deceased to give each and ever minute detail of the

incident in the First Information Report. Therefore, PW 1 who

had filed the information with the police not being an eye-

witness, it cannot be said that non mentioning about the role

played by the present appellants in the First Information Report

would be in any manner fatal to the case of the prosecution.

15.So far as the contention regarding recording of the statements

by the police after 8 days of occurrence of the incident is

concerned, a proper and appropriate explanation has been given

by the Police Officer, who recorded the statements, stating that

he had recorded the statements after about 8 days of the

occurrence of the incident because religious rituals were going

on. Due to the aforesaid reason, their statements could not have

been recorded on 4.11.1993 which is also written in the case

diary. In that view of the matter and there being a plausible and

possible explanation given for recording the statements of eye-

Page 8 of 12 witnesses after 8 days, the same cannot, in any manner,

demolish or vitiate the prosecution case.

16.It is also submitted by the counsel appearing for the appellants

that there was no enmity between the parties which could

establish the motive for the commission of crime. The said

contention, on the face of it, is not acceptable for we find on

records that the present appellants and the informant had an

altercation in the field and because of the said altercation, the

deceased came out of his house and was going to the field

during the process of which the aforesaid incident had occurred

wherein he was shot dead as alleged by the prosecution.

Therefore, the motive for the offence is established. There was

an enmity between the complainant party and the accused

persons and, therefore, the aforesaid submission is found to be

baseless.

17.The prosecution has examined at least three eye-witnesses to

the occurrence of the incident who have stated as to how the

incident had happened. They have also stated the different and

various role played by the accused persons. Since eye witnesses

were available and examined, there was no necessity of

examining any other witness, inasmuch as, there is no necessity

for the prosecution to multiply witnesses to prove and establish

Page 9 of 12

the prosecution case. There is no requirement in the law of

evidence that any particular number of witnesses is to be

examined to prove something. The evidence has to be weighed

and not to be counted. The witnesses who were examined were

relatives of the deceased and, therefore, there is no ground and

reason why they should be disbelieved. There is also no reason

why they would not speak the truth so as to see that the actual

guilty persons are convicted.

18.It is also submitted that there has been an improvement and

embellishment in the prosecution case and the role of the

appellants have been exaggerated so as to see that all the

members of the family are punished and are sent to jail.

19.In order to appreciate the said contention, we have looked into

the records. In fact, we find that the English translation

provided by the appellants in the additional paper book of the

evidence of PW-2 on the role of the appellants in the incident

alleged appears to be incorrect. Same is the case with the

deposition of PW-4. The statements made by the said witnesses

regarding the alleged role of the present appellants in the

incident the English translation provided appears to be wrong.

In that view of the matter, we perused the original depositions of

the two witnesses which have been recorded in Hindi. On going

Page 10 of 12

through the same, we find that PW2 and PW4 have specifically

stated that the present appellants were holding the deceased by

his hands and also exhorted Ramdutt to bring the gun and to

shoot at the deceased. The aforesaid statements of giving

exhortion and holding the hand of the deceased and Ramdutt

coming with the gun and fired at him are corroborated. It clearly

proves and establishes from the said fact that the present

appellants also had the common intention of killing the

deceased. It is established from the records that they had

intentionally become a party to commit the murder of the

deceased.

20.Section 34 of the Indian Penal Code provides that if two or more

persons intentionally do an act jointly, the position in law would

be just the same as if each of them has done the offence

individually by himself. This doctrine of constructive criminal

liability is well-established in law. The very fact that the

appellants were holding the hand of the deceased and also at

the same time exhorting Ramdutt to bring the gun and to fire

upon the deceased so as to kill him speaks volume and also

prove and establish that they have done the act intentionally so

as to see that the deceased is fired upon and shot dead.

21.In that view of the matter, we find no infirmity in the judgment

Page 11 of 12

and order passed by the High Court setting aside the order of

acquittal so far the present appellants are concerned. We

uphold the order of conviction and sentence passed against

them and dismiss the appeal.

22.The applications which are pending, are also disposed of in

terms of the aforesaid order.

...............

.............................J.

(DR. MUKUNDAKAM

SHARMA)

...............

.............................J.

(ANIL R. DAVE)

NEW DELHI

SEPTEMBER 13, 2011.

Page 12 of 12