Rameshwar . vs The State Of Madhya Pradesh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2448 OF 2009

RAMESHWAR AND ANOTHER …..Appellants

VERSUS

STATE OF MADHYA PRADESH ….Respondent

JUDGMENT

R. BANUMATHI, J.

This appeal arises out of the judgment dated 25.06.2008

in Criminal Appeal No.275 of 1995 passed by the High Court of

Madhya Pradesh at Gwalior Bench in and by which the High

Court has affirmed the conviction of both the appellants

(accused No.6 and 5) under Section 302 IPC read with Section

34 IPC and the sentence of life imprisonment imposed upon

them along with fine of Rs.5,000/- each.

Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2019.08.21 14:11:49 IST Reason: 1

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

house and deceased Ram Autar was taking the meals. After

taking meals, deceased went out to the courtyard of the house

for drinking water. At that time, appellant No.1-Rameshwar with

whom the deceased had rivalry came to the courtyard armed

with a farsa (axe) and five other accused persons armed with

rifles and danda were also standing at the door of one Kedar

Seth, neighbour and amongst them, appellant No.2-Balaram

was also there. Appellant No.1 exhorted others to kill the

deceased Ram Autar and thereafter, appellant No.1 attacked

the deceased with farsa. Deceased ran out of the courtyard.

Four persons standing at the door of Kedar Seth caught hold of

deceased. Appellant No.1-Rameshwar and accused No.1-Ram

Bharosey came there and joined the other co-accused. At that

time, Tejabai, mother of deceased came and laid down on Ram

Autar in order to save him. Accused separated Tejabai and

when Tejabai tried to catch hold of farsa from accused

Rameshwar, she sustained injury near her ear. Case of

2 prosecution is that accused Rameshwar and Ram Bharosey

caught hold of deceased and accused Balaram fired gun shot

at deceased Ram Autar which hit the back of deceased due to

which deceased fell down sustaining the gun shot injury.

Accused Rameshwar also is said to have taken the gun from

accused No.3-Umacharan and fired at deceased Ram Autar

due to which, deceased Ram Autar sustained injuries at the

hands of accused Rameshwar also. When the villagers came,

all the accused fled away from the spot. On the complaint

lodged by PW-1-Subhadra, wife of deceased, FIR in Crime

Case No.08/84 was registered under Sections 452, 147, 148,

302, 302 read with Section 149 IPC and under Sections 11 and

13 of the M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra

Adhiniyam, 1981.

3. Dr. P.S. Tomar, PW-10 had conducted the post-mortem

and found the following injuries on the dead body of deceased

Ram Autar:-

(i) One circular hole of 1.5 cm on the back of deceased, situated in the middle of spinal cord;

(ii) Injury in the muscle;

(iii) Spinal bone of deceased was fractured;

3

(iv) Injury in lower blood vein.

Five pellets were found inside the spinal cord of deceased and

all these pellets were sealed and handed over to Police. PW-10

issued post-mortem certificate (Ex.P6) opining that deceased

died of the injuries and injury No.1 was sufficient to cause

death. Appellant No.1-Rameshwar was arrested on 23.04.1984

and on being interrogated, he gave the statement which led to

recovery of axe in the gonad under Ex.-P7-seizure memo. After

completion of investigation, charge sheet was filed against the

appellants and other four accused in the aforesaid offence.

4. In order to prove the guilt of the accused, prosecution has

examined PW-1-Subhadra, wife of deceased, PW-2-Ram

Narayan, father of deceased, PW-6-Katori Bai and PW-7-Ram

Gopal and the neighbours all of whom have spoken about the

occurrence and also about the overt act of the accused.

Prosecution has also examined doctor who conducted autopsy

and other official witnesses. Upon consideration of the oral

evidence, the trial court held that the oral evidence is amply

corroborated by the medical evidence and also the recovery of

axe at the instance of appellant No.1-Rameshwar. The trial

4 court held that the prosecution has established the guilt of the

accused beyond reasonable doubt and convicted appellant

No.1-Rameshwar and appellant No.2-Balaram under Section

302 IPC read with Section 34 IPC and sentenced each of them

to undergo life imprisonment along with fine of Rs.5,000/- each.

Insofar as offence under M.P. Dakaiti Aur Vyapharan Prabhavit

Kshetra Adhiniyam is concerned, the trial court held that there

is no evidence on record to prove that the incident was done

with the help of any dacoit and so, they were acquitted under

the Act. The trial court acquitted all other accused from all the

charges. Being aggrieved, the appellants have preferred

appeal before the High Court.

5. The High Court held that even though there are

contradictions in the statement of PW-1 recorded in the court

and her statement in the FIR, since the prosecution has proved

that the appellants have shared the common intention to

commit the murder of the deceased, the court can invoke

Section 34 IPC and in such a situation, it was not necessary for

the prosecution to prove that the gun shot injuries which has

resulted in the death of the deceased was caused by which of

5 the two appellants. The High Court affirmed the conviction of

the appellants under Section 302 IPC read with Section 34 IPC

and the sentence of life imprisonment imposed upon them.

Being aggrieved, the appellants are before us.

6. During the pendency of the appeal before this Court,

appellant No.1-Rameshwar passed away and the appeal

against him stands abated.

7. On behalf of appellant No.2, we have heard the

submission of Mr. Nagendra Rai, learned senior counsel. We

have also heard Mr. Rahul Kaushik, learned counsel on behalf

of the respondent and perused the impugned judgment and

other materials on record.

8. Learned senior counsel appearing on behalf of appellant

No.2 has submitted that the High Court erred in affirming the

conviction of the appellant No.2-Balaram by invoking Section

34 IPC. It was submitted that there was no clear evidence for

arriving at the conclusion that there was any prior concert or

meeting of mind before the commission of offence. It was

further submitted that the deposition of the eye-witnesses viz.

PW-1-Subhadra, PW-2-Ram Narayan, PW-6-Katori Bai and 6 PW-7-Ram Gopal are inconsistent and contradictory to each

other and while so, the trial court erred in basing the conviction

upon such inconsistent evidence and the High Court erred in

affirming the conviction and the impugned judgment convicting

appellant No.2-Balaram is not sustainable.

9. Learned counsel appearing on behalf of the respondent-

State has submitted that upon appreciation of oral evidence of

the eye-witnesses and other evidence, the High Court rightly

affirmed the conviction of the appellants and the impugned

judgment warrants no interference.

10. Insofar as the contention that there are contradictions

between the evidence of PW-1 made before the court and her

statement in Dehati Nalishi (Ex.-P1), it was submitted that in

Ex.-P1-Dehati Nalishi, PW-1 has stated that there were three

gun shots - one by accused Rameshwar, one by accused

Balaram which caused injury on the back of the deceased and

one by accused Umacharan which caused injury on the body of

the deceased. In their evidence before the court, PWs 1 and 2

have stated that appellant No.1 had fired gun shot upon the

deceased; whereas, PWs 6 and 7 have stated that appellant

7 No.2 had fired the deceased with his rifle. The trial court held

that such contradictions would not affect the prosecution case

because in Dehati Nalishi, PW-1 has clearly stated that

appellant No.2-Balaram had fired upon the deceased from his

rifle. The statement of PW-1 in Ex.-P1 appears to be more

reliable because her statement in Ex.-P1 is corroborated by the

statement of PWs 6 and 7. As per the evidence of PWs 6 and

7, appellant No.2 armed with rifle was present at the spot and

that there were two gun shots at the time of the incident which

were fired by accused Rameshwar and Balaram.

11. As per Ex.-P6-post-mortem certificate, deceased Ram

Autar sustained 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 bore cartridge and one .12 bore empty

cartridge from the spot. PW-15 also seized two plastic pieces

which were emitting the smell of gun power and the above

material objects were seized under Ex.-P11-seizure memo.

Insofar 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 part of the body of the deceased the said

8 gun-shot was hit. Considering the fact that there was no cogent

evidence against Umacharan, the trial court granted benefit of

doubt and acquitted him. As rightly held by the High Court, the

evidence against the appellants-accused is not identical as

against the co-accused Umacharan who was acquitted.

12. Learned senior counsel for appellant No.2 mainly urged

that there are contradictions in the evidence of the witnesses

as to who fired gun shots on deceased Ram Autar. As held by

the High Court, even assuming that appellant No.1-Rameshwar

has fired gun shot, the conviction of appellant No.2-Balaram

can be sustained with the aid of Section 34 IPC. To invoke

Section 34 IPC, it must be established that the criminal act was

done by more than one person in furtherance of common

intention of all. It must, therefore, be provided that (i) there was

common intention on the part of several persons to commit a

particular crime; and (ii) in furtherance of that common

intention, the crime was actually committed by them. In the

present case, the presence of appellant No.2 has been

established by consistent evidence of the eye-witnesses viz.

PWs 1, 2, 6 and 7. Admittedly, appellant No.2 was armed with

9 rifle and thus shared the common intention acting in concert

with accused Rameshwar. When appellant No.2 has been

proved to have acted in furtherance of the common intention,

his conviction under Section 302 IPC was rightly affirmed by

the High Court by invoking the aid of Section 34 IPC. We do not

find any reason for warranting interference with the impugned

judgment.

13. In the result, the conviction of appellant No.2-Balaram

under Section 302 IPC read with Section 34 IPC and the

sentence of life imprisonment imposed upon him is affirmed

and this appeal is dismissed qua appellant No.2. Since the

appellant No.1-Rameshwar has passed away, the appeal

against him is dismissed as abated. The appellant No.2 shall

surrender within a period of six weeks from today to serve the

remaining period of sentence, failing which he shall be taken

into custody.

………………………….J. [R. BANUMATHI]

………………………….J. [A.S. BOPANNA] New Delhi;

August 21, 2019.

10