Nand Kishore vs State Of M.P

2 1. The present appeal is directed against the judgment of

the High Court of Judicature of Madhya Pradesh at Jabalpur

dated 26th August, 2004 affirming the judgment of the

Sessions Judge, Datia, Madhya Pradesh dated 30th December,

1998 convicting all the three accused (appellants/petitioners

herein) for an offence under Section 302 read with Section 34

of the Indian Penal Code (IPC) awarding life sentence to each

one of them with a fine of Rs.2,000/- each in default thereto to

undergo rigorous imprisonment for three years.

2. We must notice that vide order dated 28th May, 2005, the

Special Leave Petition in respect of Petitioner Nos.2 and 3,

namely, Mahesh Dhimar and Dinesh Dhimar had already been

dismissed. Thus, we have to consider the present appeal only

in respect of Appellant No.1, namely, Nand Kishore.

3. The learned counsel appearing on behalf of appellant

No.1, while impugning the judgment under appeal contended

that :

3 A. the prosecution has not been able to prove its case

beyond reasonable doubt. In fact, there is no direct

evidence to sustain the conviction of the accused. It is

further argued that on the contrary, there are serious

contradictions between the statements of the alleged eye-

witnesses as well as the medical evidence. The accused,

thus, was entitled to benefit of doubt and consequent

acquittal.

B. In any case, the appellant could not have been convicted

at all for an offence under Section 302 read with Section

34 IPC as he had no common intention with other

accused. It is further submitted that he shared neither

participated in the commission of the crime nor was he

carrying any weapon. On the cumulative reading of the

evidence, the ingredients of Section 34 IPC are not

satisfied and, therefore, conviction of the appellant is

vitiated in law.

4 4. In order to examine the merit or otherwise of these

contentions, it would be useful for us to refer to the necessary

facts giving rise to the present appeal.

The incident took place on 18th June, 1997 in the night at

about 9-9.30 p.m. at Christian Ka Pura, Bangar Ki Haveli.

Some young boys of the vicinity informed the complainant,

Brij Kishore Bidua, who was later examined as PW1 that a

quarrel has taken place between Mahavir, the deceased, and

Mahesh Dhimar near the house of Mahesh Dhimar. Upon

receiving this information, Brij Kishore, along with Sunil

Badhaulia, went running to the Christian Ka Pura where they

saw that Mahesh Dhimar was holding both the arms of

Mahavir and Dinesh Dhimar was stabbing him with knife in

the chest on the left side and Nand Kishore was also pelting

stones at him. After receiving these injuries, Mahavir

collapsed to the ground. As per the witnesses even after

Mahavir fell, Nand Kishore kept pelting stones on him and

then they ran away from the site. Brij Kishore and Sunil

carried Mahavir to the hospital on their scooter where the

doctor examined him and declared him brought dead. It is the

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case of the prosecution that Mahavir had some dues to recover

from Mahesh Dhimar and to recover that money, Mahavir had

gone to Mahesh Dhimar but the fight occurred and without

any resistance from Mahavir, all the three accused killed him

in the manner afore-referred.

At about 10 p.m. the same day Brij Kishore, the brother

of the deceased Mahavir, lodged a report in the Police Station

at Kotwali Datia where a criminal case No.175/97 under

Section 302 read with Section 34 IPC was registered. This was

investigated by the Investigating Officer who, during

investigation, prepared or caused to be prepared post mortem

report, site plan, recovered a knife on the disclosure of Dinesh,

recovered bricks, took sample of soil soaked in blood and

clothes of the deceased. These things were sent to the forensic

science laboratory for examination. After completing the

investigation, challan was filed against all the accused

persons. They were tried by the Court of competent

jurisdiction. The Sessions Judge, Datia, by a detailed and well

reasoned judgment dated 30th December, 1998, convicted

accused Dinesh for an offence under Section 302 IPC while the

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other two accused, namely, Nand Kishore and Mahesh Dhimar

were convicted for an offence under Section 302 read with

Section 34 IPC and sentenced them as aforestated. This

judgment was unsuccessfully assailed by the accused before

the High Court which dismissed the appeal declining to

interfere either with the judgment of conviction or the order of

sentence.

5. Dissatisfied from the concurrent judgments of the courts,

the accused has filed the present appeal.

6. The statements of PW1, Brij Kishore, Dr. P.K. Srivastava,

PW5 and PW8, Narendra Singh, (Investigating Officer) have to

be examined in some detail.

7. PW1 is the eye-witness to the occurrence and while fully

supporting the case of the prosecution, he stated that Mahesh

Dhimar's house was about 100 ft. away from the place of

occurrence. He narrated the above facts and stated that

Rajendra and Sunil had also reached the spot following him

and they had witnessed the occurrence. They took the

deceased to the hospital where he was declared brought dead.

7 This witness did not refer to any animosity between the

deceased and the accused. PW8 has referred to the entire

investigation, various recovery memos as well as registration of

the FIR (Exhibit P1). Statement of PW1 is corroborated with

the report of Exhibit P1.

8. Dr. P.K. Srivastava, PW5, stated that on 19th June, 1997

at around 7.00 O'clock in the morning, he had examined the

dead body of the deceased and there were incised wounds on

his body on the left side of the chest, right thigh, in the heart

in left lung and 11-12 other lacerated scratches and internal

wounds etc. According to him, injury on the heart caused

death and the deceased had died round about 10-14 hours

before the post mortem examination.

9. There are two main discrepancies which have been

highlighted on behalf of the appellant to claim the benefit of

doubt. Firstly, that according to the doctor, there were nearly

16 wounds on the body of the deceased, while the eye-

witnesses have referred to just two blows by accused Dinesh

Dhimar on the left side of the deceased; and secondly that the

8

injuries were stated to have only been caused by a sharp

weapon. Brij Kishore (PW1) had clearly stated that Dinesh

had inflicted the injuries upon the body of the deceased with a

knife. According to Investigating officer (PW8) and Munna Lal

(PW2), the said knife was recovered by Panchnama of recovery

(Ex. P-6). However, PW1 did not specifically state in the Court

that the knife was recovered by going to the house of the

accused. There is some element of difference between these

statements but it in no way amounts to a material

contradiction or discrepancy which has caused any prejudice

to the accused. These so-called discrepancies can easily be

explained and have been dealt with in the judgment under

appeal appropriately. In his examination in which PW1 has

stated that after arrest of Dinesh, the police had questioned

him and he had told them about the knife which was

recovered. However, he stated that he does not remember the

exact place from where the recovery was made due to lapse of

time. He, however, with certainty states that a panchnama

was prepared and it was signed. In his cross examination he

categorically stated "the knife was recovered before me when I

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was called in Kotwali by Vermaji and I had seen that knife in

kotwali and the knife had been recovered before the statement

of Dinesh was recorded'. This evidence of the witness has to

be read in conjunction with the statement of PW8 and PW 2.

Upon such reading recovery of the knife from the house of the

accused is established. Further, the doctor has referred to

various injuries on the body of the deceased including

abrasions and small cuts which could have been a result of

pelting of stones by Nand Kishore upon the deceased even

after he had fallen on the ground. While rejecting the

contention with respect to the second alleged discrepancy, it

must be borne in mind that the Court has to examine the

statement of a witness as a whole. The Court may not be in a

correct position to arrive at any final conclusion while only

reading or relying upon a sentence in the statement of a

witness that too by reading it out of context. The evidentiary

value of a statement should normally be appreciated in its

correct perspective, attendant circumstances and the context

in which the statement was made. As far as the alleged

discrepancy with regard to recovery of knife is concerned, it is

10

not possible for the Court to attach undue importance to this

aspect. The court has to form an opinion about the credibility

of the witness and record a finding as to whether his

deposition inspires confidence. "Exaggerations per se do not

render the evidence brittle. But it can be one of the factors to

test credibility of the prosecution version, when the entire

evidence is put in a crucible for being tested on the touchstone

of credibility." Therefore, mere marginal variations in the

statements of a witness cannot be dubbed as improvements,

as the same may be elaborations of the statement made by the

witness earlier. "Irrelevant details which do not in any way

corrode the credibility of a witness cannot be labelled as

omissions or contradictions." The omissions which amount to

contradictions in material particulars, i.e., materially affect the

trial or core of the prosecution's case, render the testimony of

the witness liable to be discredited. [Vide: State Represented

by Inspector of Police v. Saravanan & Anr. [(2008) 17 SCC 587],

Arumugam v. State [(2008) 15 SCC 590] and Mahendra Pratap

Singh v. State of Uttar Pradesh [(2009) 11 SCC 334]. The knife

was recovered in furtherance to the disclosure statement made

11

by Dinesh Dhimar. The recovery memo which was duly

proved in accordance with law, according to the medical

evidence given by PW5, and the statement of the investigating

officer, PW8, clearly show that knife was recovered from the

house of Dinesh Dhimar and the injuries on the body of the

deceased were inflicted by the knife. Thus, these alleged

discrepancies can hardly be of any advantage to the accused.

10. Another very significant aspect of this case is that the

prosecution had not examined Rajendra and Sunil as

prosecution witnesses and this issue was raised on behalf of

the defence that the Court should draw adverse inference from

non-examination of these witnesses. Witness Rajendra was

given up as the prosecution felt that he would be hostile to the

case of the prosecution but Sunil himself was examined by the

accused as its own witness. Once Sunil was examined as

witness of the defence, the objection taken by the appellant

loses its legal content. DW1, though appeared as witness for

the defence, supported the case of the prosecution resulting in

his being declared as a hostile witness by the counsel

appearing for the accused. Therefore, the statement of DW1

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could be and has rightly been relied upon by the learned

Sessions Judge while convicting the accused of the offence.

The statement of DW1 has fully corroborated the statement of

PW1. He stated that there were nearly 20 to 30 houses in that

Mohalla and denied the suggestion made to him by the defence

counsel that he had not seen anything on the fateful day and

was not witness to the occurrence. He also, specifically,

denied the suggestion that he was related to the family of the

deceased. In his cross-examination, he has clearly stated that

Mahesh Dhimar had caught hold of both the hands of the

deceased and Dinesh Dhimar had given blows on the chest of

the deceased by a knife and Nand Kishore had pelted stones

on the deceased. Lastly, he also stated that he had taken the

deceased to the hospital along with PW1. Confronted with this

evidence, the appellant can hardly even attempt to argue that

there is no definite evidence on record to prove the

commission of the offence by the appellant. There is definite

documentary, ocular and medical evidence and more definitely

statement of defence witness itself to repel the plea of the

appellant that he has been falsely implicated in the case.

13 11. Now, we would examine whether the conviction of the

appellant under Section 302 with the aid of Section 34 by the

courts is sustainable in law or not. For the application of

Section 34 IPC, it is difficult to state any hard and fast rule

which can be applied universally to all cases. It will always

depend upon the facts and circumstances of the given case

whether the persons involved in the commission of the crime

with a common intention can be held guilty of the main

offence committed by them together. Provisions of Section 34

IPC come to the aid of law while dealing with cases of criminal

offence committed by a group of persons with common

intention. Section 34 reads as under :

"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."

A bare reading of this section shows that the section

could be dissected as follows :

(a) Criminal act is done by several persons;

14 (b) Such act is done in furtherance of the common intention

of all; and

(c) Each of such persons is liable for that Act in the same

manner as if it were done by him alone.

In other words, these three ingredients would guide the

court is determining whether an accused is liable to be

convicted with the aid of Section 34. While first two are the

acts which are attributable and have to be proved as actions of

the accused, the third is the consequence. Once criminal act

and common intentions are proved, then by fiction of law,

criminal liability of having done that act by each person

individually would arise. The criminal act, according to

Section 34 IPC must be done by several persons. The

emphasis in this part of the section is on the word `done'. It

only flows from this that before a person can be convicted by

following the provisions of Section 34, that person must have

done something along with other persons. Some individual

participation in the commission of the criminal act would be

the requirement. Every individual member of the entire group

charged with the aid of Section 34 must, therefore, be a

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participant in the joint act which is the result of their

combined activity. Under Section 34, every individual offender

is associated with the criminal act which constitutes the

offence both physically as well as mentally, i.e., he is a

participant not only in what has been described as a common

act but also what is termed as the common intention and,

therefore, in both these respects his individual role is put into

serious jeopardy although this individual role might be a part

of a common scheme in which others have also joined him and

played a role that is similar or different. But referring to the

common intention, it needs to be clarified that the courts must

keep in mind the fine distinction between `common intention'

on the one hand and `mens rea' as understood in criminal

jurisprudence on the other. Common intention is not alike or

identical to mens rea. The latter may be co-incidental with or

collateral to the former but they are distinct and different.

12. Section 34 also deals with constructive criminal liability.

It provides that where 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

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was done by him alone. If the common intention leads to the

commission of the criminal offence charged, each one of the

persons sharing the common intention is constructively liable

for the criminal act done by one of them. {Refer to Brathi alias

Sukhdev Singh v. State of Punjab [(1991) 1 SCC 519]}.

13. Another aspect which the Court has to keep in mind

while dealing with such cases is that the common intention or

state of mind and the physical act, both may be arrived at the

spot and essentially may not be the result of any pre-

determined plan to commit such an offence. This will always

depend on the facts and circumstances of the case, like in the

present case Mahavir, all alone and unarmed went to demand

money from Mahesh but Mahesh, Dinesh and Nand Kishore

got together outside their house and as is evident from the

statement of the witnesses, they not only became aggressive

but also committed a crime and went to the extent of stabbing

him over and over again at most vital parts of the body

puncturing both the heart and the lung as well as pelting

stones at him even when he fell on the ground. But for their

participation and a clear frame of mind to kill the deceased,

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Dinesh probably would not have been able to kill Mahavir.

The role attributable to each one of them, thus, clearly

demonstrates common intention and common participation to

achieve the object of killing the deceased. In other words, the

criminal act was done with the common intention to kill the

deceased Mahavir. The trial court has rightly noticed in its

judgment that all the accused persons coming together in the

night time and giving such serious blows and injuries with

active participation shows a common intention to murder the

deceased. In these circumstances, the conclusions arrived at

by the trial Court and the High Court would not call for any

interference.

14. The learned counsel appearing for the appellant had

relied upon the judgment of this Court in the case of

Shivalingappa Kallayanappa & Ors. v. State of Karnataka

[1994 Supp. (3) SCC 235] to contend that they could not be

charged or convicted for an offence under Section 302 with the

aid of Section 34 IPC. The said judgment has rightly been

distinguished by the High Court in the judgment under

appeal. In that case, the Supreme Court had considered the

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role of each individual and recorded a finding that there was

no common object on the part of the accused to commit

murder. In that case, the court was primarily concerned with

the common object falling within the ambit of Section 149,

IPC. In fact, Section 34 IPC has not even been referred to in

the afore-referred judgment of this Court.

15. Another case to which attention of this Court was invited

is Jai Bhagwan & Ors. v. State of Haryana [(1999) 3 SCC 102].

In that case also, the Court had discussed the scope of Section

34 IPC and held that common intention and participation of

the accused in commission of the offence are the ingredients

which should be satisfied before a person could be convicted

with the aid of Section 34 IPC. The Court held as under :

"10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established:

(i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred

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from the facts and circumstances of each case."

16. The facts of the present case examined in light of the

above principles do not leave any doubt in our minds that all

the three accused had a common intention in commission of

this brutal crime. Each one of them participated though the

vital blows were given by Dinesh Dhimar. But for Mahesh

catching hold of arms of the deceased probably the death

could have been avoided. Nand Kishore showed no mercy and

continued pelting stones on the deceased even when he

collapsed to the ground. The prosecution has been able to

establish the charge beyond reasonable doubt.

17. The judgments of the courts below do not suffer from any

legal infirmity or appreciation of evidence. While finding no

merit in the appeal, we dismiss the same.

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

[Dr. B.S. Chauhan]

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

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[Swatanter Kumar]

New Delhi;

July 7, 2011