The State Of Madhya Pradesh vs Jad Bai,

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 586 OF 2023 (Arising from SLP(Criminal) No.8692/2022)

The State of Madhya Pradesh …Appellant

Versus Jad Bai …Respondent

JUDGMENT

M.R. SHAH, J Leave granted.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 24.09.2019 passed by the High Court of Madhya

Pradesh, Bench at Indore in Criminal Appeal No. 1244/2011, by which

the High Court has allowed the said appeal preferred by the respondent

herein – Jad Bai and has acquitted her for the offences punishable under

section 302 read with section 34 of the Indian Penal Code (for short,

‘IPC’) by observing that the prosecution has failed to prove the case of

common intention against her, the State of Madhya Pradesh has

preferred the present appeal.

Signature Not Verified Digitally signed by R Natarajan

2. The respondent herein and the co-accused – husband and son of Date: 2023.02.24 16:49:46 IST Reason:

the respondent, all were tried and ultimately convicted for the offences

1 punishable under section 302 read with section 34 of the IPC for having

killed Vesta, the deceased.

3. That an FIR was lodged by one Nanbai – wife of the deceased at

the Police Station Nanpur, alleging that on the Diwali night at about

10:00 or 11:00 pm the elder brother of her husband (Jeth) – accused

No.1 – Sekadiya and his son Mukesh – accused No.2 came to her

house to call her husband saying that there had been cooked ‘Murga’ in

their house. According to the complainant, her husband – Vesta went

along with accused No.1 and accused No.2. According to the

complainant after sometime, she heard the voice of crying/scream of her

husband and she immediately rushed to the house of her Jeth –

accused No.1 – Sekadiya and she saw in the light of electricity that

accused No.3 – Jethani (wife of accused No.1 – Sekadiya) had caught

hold her husband – Vesta and accused No.1 assaulted her husband by

Axe on the head, due to which Vesta fell down. As per the case of the

prosecution, the husband of the complainant – Vesta died due to injuries

from the axe. According to the prosecution there was a land dispute and

therefore the accused persons killed the deceased by calling him at their

house. According to the prosecution the accused persons committed the

offences punishable under Section 302 read with Section 34 of the IPC.

After conclusion of the investigation, the Investigating Officer filed the

2 chargesheet against the accused for the aforesaid offences. The

accused pleaded not guilty and therefore all of them claimed to be tried

by the learned Sessions Court for the offences punishable under Section

302 read with Section 34 of the IPC. To prove the charge against

accused the prosecution examined in all eight witnesses out of which

Nanbai – PW1 was the eye witness. The prosecution also brought on

record the documentary evidences including the medical evidence

through various witnesses. On closure of the evidence on the side of the

prosecution, statements of accused under Section 313 Cr.PC were

recorded in which the accused stated that they have been falsely

implicated in the case at the instance of the Sarpanch due to enmity of

election. On appreciation of evidence, the learned Trial Court held all the

accused guilty for the offences punishable under Section 302 read with

Section 34 of the IPC and sentenced all of them to undergo life

imprisonment.

4. Feeling aggrieved and dissatisfied with the judgment and order

passed by the learned trial Court, all the accused preferred an appeal

before the High Court. By the impugned judgment and order, the High

Court has partly allowed the said appeal and has acquitted the

respondent herein – original accused No. 3 – Jad Bai, wife of original

3 accused No. 1, however, dismissed the appeal qua original accused

Nos. 1 & 2.

5. Feeling aggrieved and dissatisfied with the impugned judgment

and order of acquittal passed by the High Court acquitting the

respondent herein – Jad Bai, original accused No.3, the State of Madhya

Pradesh has preferred the present appeal.

6. Shri Yashraj Singh Bundela, learned counsel appearing on behalf

of the State has vehemently submitted that in the facts and

circumstances of the case, the High Court has committed a very serious

error in acquitting the respondent herein – original accused No.3 by

holding that the prosecution has failed to prove the case of common

intention.

6.1 It is submitted that in the present case, PW1-Nanbai, the wife of

the deceased was the eyewitness and in her deposition she specifically

stated that the respondent – Jad Bai caught hold of the deceased. It is

submitted that therefore the presence of the respondent at the place of

incident has been established and according to her deposition, the

respondent caught hold of the deceased and her husband – original

accused No.1 caused injuries on the deceased . It is submitted that

therefore the learned trial Court rightly convicted the respondent –

4 original accused No.3 for the offences punishable under section 302 with

the aid of section 34 of the IPC, along with the other accused.

6.2 It is further submitted that as such the incident occurred at the

house of the respondent. It is submitted that in her section 313

statement, the respondent has not explained why she was holding

and/or caught hold of the deceased.

6.3 Learned counsel appearing on behalf of the State, relying upon a

recent decision of this Court in the case of State of Rajasthan v.

Gurcharan Singh and Others, reported in 2022 SCC OnLine SC

1716, has vehemently submitted that as observed and held by this

Court, common intention can be formed at the spur of the moment and

during the occurrence itself. It is submitted that it is further observed and

held by this Court that, whether or not there exists a common intention,

has to be determined by drawing inference from the facts proved. 6.4 Learned counsel appearing on behalf of the State has also heavily

relied upon the decision of this Court in the case of Major Singh v.

State of Punjab, reported in (2002) 10 SCC 60 in support of his case

that the respondent was rightly convicted by the learned trial Court for

the offences punishable under section 302 with the aid of section 34 of

the IPC.

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7. Ms. Jesal Wahi, learned Amicus Curiae has vehemently submitted

that in the facts and circumstances of the case and by giving cogent

reasons when the High Court has acquitted the respondent-accused, the

same may not be interfered with by this Court, in exercise of powers

under Article 136 of the Constitution of India.

7.1 Learned Amicus has taken us to the deposition of PW1 – Nanbai.

It is vehemently submitted that from her deposition, it can be seen that

she had never seen original accused No.1 causing injuries on the body

of the deceased. It is submitted that in fact she had come at the place of

the incident after the entire incident had taken place and the deceased

was lying with injuries. It is submitted that what is stated by her in her

deposition is that the respondent – accused had caught hold of the

deceased. It is submitted that she has not stated in her deposition that

in fact she had seen the respondent – Jad Bai causing any injury and/or

taking any active part in causing the death of the deceased. It is

submitted that therefore the High Court has rightly acquitted the

respondent by observing that the prosecution has failed to prove the

common intention shared by the respondent with the other accused,

namely, original accused No.1.

7.2 Making above submissions and relying upon the decisions of this

Court in the cases of Mukesh v. State of Madhya Pradesh, reported

6 in (2022) 3 SCC 241 and Ramashish Yadav v. State of Bihar,

reported in (1999) 8 SCC 555, it is prayed to dismiss the present

appeal.

8. We have heard learned counsel appearing on behalf of the parties

at length. We have gone through the judgment and order of conviction

passed by the learned trial Court as well as the impugned judgment and

order passed by the High Court. We have also considered and gone

through in detail the deposition of PW1 – Nanbai, an eyewitness to the

incident.

9. The learned trial Court convicted the respondent Jad Bai – original

accused No.3 for the offences punishable under section 302 with the aid

of section 34 of the IPC. By the impugned judgment and order, the High

Court has acquitted the respondent – original accused No.3 by

observing and holding that the prosecution has failed to prove the case

of common intention.

10. The entire prosecution case rests on the sole testimony of PW1 –

eyewitness to the incident. PW1 is the wife of the deceased. She has

categorically stated in her deposition that the incident occurred in the

house of the respondent – original accused No.3. She has specifically

stated that original accused No.1 – husband of the respondent caused

four injuries on the head of the deceased. She has also stated that the

7 respondent caught hold of the deceased. She has also stated that

thereafter the respondent – original accused No.3 dragged the dead

body of the deceased and thrown it on the gate of her house. It is the

case on behalf of the accused that PW1 was not present at the time

when the original accused No.1 caused injuries on the deceased.

According to the learned counsel appearing on behalf of the respondent,

PW1 came subsequently and at that time she had seen the respondent

having caught hold of the deceased. The aforesaid has no substance.

The deposition of the eyewitness is required to be considered as a whole

and it cannot be in a particular part or sequence. On considering the

deposition of PW1 as a whole, the presence of the respondent at the

place of the occurrence has been established. The prosecution has also

established that the respondent caught hold of the deceased. In her

section 313 statement, the respondent – original accused No.3 has not

explained why she caught hold of the deceased. Thus, the participation

in action of the respondent has been established and proved. If the

respondent would not have caught hold of the deceased, in that case the

original accused No.1 might not have been able to cause injuries on the

head of the deceased. Thus, it can be seen that the respondent

participated actively in commission of the offence and shared the

common intention to kill the deceased.

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11. In the case of Gurbachan Singh (supra), it is observed and held

as under:

“12. Given the aforesaid position, we are of the view that Section 34 of the IPC i.e., common intention, is clearly attracted in the case of Gurbachan Singh, whose case cannot be distinguished, so as to exclude him as one who did not share common intention with Darshan Singh, Balvir Singh, and Manjit Singh. Section 34 of the IPC makes a co- perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention.”

12. Now so far as the decisions relying upon on behalf of the

respondent in the cases of Mukesh (supra) and Ramashish Yadav

(supra) are concerned, on facts and in light of the deposition of PW1 –

eyewitness and that she has specifically stated that the respondent

caught hold of the deceased, the said decisions shall not be of any

assistance to the respondent.

13. In the present case, the participation in action of the respondent in

commission of the offence and the common intention to commit the

murder of the deceased with original accused No.1 – husband of the

9 respondent have been established and proved by the prosecution.

Therefore, the High Court has committed a very serious error in

acquitting the respondent for the offences punishable under section 302

with the aid of section 34 of the IPC.

14. In view of the above and for the reasons stated above, the present

appeal succeeds. The impugned judgment and order dated 24.09.2019

passed by the High Court of Madhya Pradesh, Bench at Indore in

Criminal Appeal No. 1244/2011, acquitting the respondent herein –

original accused No.3 for the offences punishable under section 302 with

the aid of section 34 of the IPC is hereby quashed and set aside and the

judgment and order dated 24.08.2011 passed by the learned trial Court

in Sessions Trial No. 204/2010, convicting the respondent herein –

original accused No.3 for the offences punishable under section 302 with

the aid of section 34 of the IPC is hereby restored.

As we have quashed and set aside the impugned judgment and

order passed by the High Court acquitting the respondent herein,

respondent – Jad Bai is directed to surrender before the concerned Jail

authorities within a period of six weeks from today to undergo the

remaining sentence as per the judgment and order passed by the

learned trial Court, failing which she may be taken into custody on the

expiry of six weeks’ time to serve out the remaining sentence.

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15. The instant appeal is allowed accordingly.

……………………………………..J. [M.R. SHAH]

NEW DELHI; ……………………………………..J. FEBRUARY 24, 2023. [C.T. RAVIKUMAR]

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