Madhya Pradesh High Court
Gudda @ Satyanarayan vs State Of M.P. And Others on 16 December, 2022
Author: Rohit Arya
Bench: Rohit Arya, Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL APPEAL No.126 of 2001
BETWEEN:-
1. RAMNIWAS @ RAMVILASH (DEAD)
THROUGH ITS LEGAL HEIRS :
(1) PUSHPA SHARMA, W/O LATE SHRI
RAMNIWAS ALIAS RAMVILASH
SHARMA, AGED 62 YEARS, OCCUPATION:
HOUSEWIFE, R/O VILLAGE BADAGAON,
NAWALI TAHSIL AND DISTRICT MORENA
(MADHYA PRADESH)
(2) KAMTA PRASAD SHARMA, S/O LATE SHRI
RAMNIWAS ALIAS RAMVILAS SHARMA,
AGED 42 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE
BADAGAON, NAWALI TAHSIL AND
DISTRICT MORENA (MADHYA
PRADESH)
(3) SUDHEER SHARMA, S/O LATE SHRI
RAMNIWAS ALIAS RAMVILAS SHARMA,
AGED 37 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE
BADAGAON, NAWALI TAHSIL AND
2
DISTRICT MORENA (MADHYA PRADESH)
2. RAMLAKHAN, S/O DESHARAM, AGED 35
YEARS, OCCUPATION: AGRICULTURIST,
R/O DINDAYAL NAGAR, GWALIOR AT
PRESENT SUB-JAIL, MORENA (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI MAHESH PURI AND SHRI VIJAY DUTT SHARMA-
ADVOCATE FOR APPELLANT ALONG WITH SHRI VIJAY
SUNDARAM, ADVOCATE APPOINTED FOR APPELLANT
THROUGH LEGAL AID AUTHORITY. )
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION KOTWALI, MORENA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL
& SHRI POORAN KULSHRESTHA - ADVOCATE FOR
COMPLAINANT)
AND
CRIMINAL APPEAL No.130 of 2001
BETWEEN:-
GUDDA ALIAS SATYANARAYAN, S/O SHRI
RAMJI LAL, AGED 28 YEARS,
OCCUPATION: AGRICULTURIST, R/O
BADAGAON, POLICE STATION BIMNI,
DISTRICT MORENA (MADHYA PRADESH)
.....APPELLANT
3
(BY SHRI ATUL GUPTA - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION KOTWALI MORENA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL
& SHRI POORAN KULSHRESTHA - ADVOCATE FOR
COMPLAINANT)
--------------------------------------------------------------------------------
Reserved on 15.11.2022
Pronounced on 16.12.2022
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These appeals coming on for hearing this day, Hon'ble
Shri Justice Milind Ramesh Phadke, passed the following:
JUDGMENT
1. The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No.130/2001 (Gudda @ Satyanarayan Vs. State of Madhya Pradesh) since the connected appeal has arisen from the common judgment passed by the learned trial Court. Since appellant no.1-Ramniwas @ Ramvilas has expired and the legal heirs of the appellant- Ramniwas @ Ramvilas have come on record vide order dated 4 23.8.2022 the Criminal Appeal No.126/2021 so far as appellant no.1-Ramniwas @ Ramvilash (since deceased) is concerned is confined to the rights of the legal representatives of appellant no.1-Ramniwas @ Ramvilash.
2. Both the appeals are directed against the judgment of conviction and order of sentence dated 23/02/2001 passed in Sessions Trial No.188/1997 passed by 2nd, Sessions Judge, District Morena, whereby appellants Ramniwas @ Ramvilash (since deceased) and Ramlakhan in the present appeal and appellant Gudda @ Satyanarayan in Criminal Appeal no.130/2001 had been held guilty u/s 302, 307/34 I.P.C, sections 302/34 and 307 I.P.C. and sections 302/34, 307/34 I.P.C., for life imprisonment and 5 years each respectively and a fine of Rs.5,000/- and Rs.3,000/- each respectively. In default of payment of fine amount the appellants were directed to further undergo a period of 5 months and 3 months each respectively. Other accused persons namely Ramratan, Dinesh, Radhshyam and Jagdish were acquitted under the charge u/s 302/149 and 307/149 I.P.C., since the charges were not held to be proved against them. Accused Ramratan and Dinesh were acquitted of the charges u/s 29 and 25(1)(a)/27 of the Arms Act respectively.
3. The case of the prosecution in nutshell is that on 05/08/1996 at about 8.30 p.m. complainant Ashok was sitting at his Paan shop, situated near J.P. College. At that moment his friend Kukku Pehelwan, came to meet him from gym (akhada).
5When they were talking one white Maruti Van approached them from Ambaha crossroad and stopped in front of the Paan shop. The accused persons came out of the Vaan and Appellant/accused Ramniwas @ Ramvilash (since deceased) fired a gun shot, which hit Kukku on his head. Ashok tried to run away, but Appellant/accused Ramlakhan fired at him, which pierced his shoulder. A second shot was fired by Ramlakhan aiming Ashok, but he missed and Ashok after running to Uttampura fell down. At the scene of occurrence Ramratan was seen carrying a 12 bore gun, Jagdish was seen with a revolver and other accused persons were also carrying guns and they all fired at Ashok when he tried to escape. After sometime, when Ashok returned back on the spot, he saw Kukku lying dead on the spot. One Deepak Agrawal was also present on the spot and the persons nearby saw the incident.
4. As per the prosecution the incident occurred due to some previous enmity between Ashok and Ramlakhan and just to kill Ashok the gunshots were fired. Immediately a F.I.R. was registered at the behest of Ashok and Police started the investigation.
5. PW-14, Station House Officer, Saligram, recorded the First Information report Ex. P/14 and send injured Ashok for medical examination vide requisition letter Ex. P/12. At District Hospital. PW-7 Dr. Siyaram Sharma examined him and submitted a report which is marked as Ex.P/12. PW-12 Dr. 6 Ravindra Sikarwar carried out X-ray of Ashok and gave his report which is marked as Ex.P/23. Spot map Ex. P/10 was prepared at the behest of eyewitness Deepak Agrawal (PW/6). From the spot normal soil, blood soaked soil and a piece of skull bone of deceased Kukku were gathered vide Ex.P/11. Statements of PW/6 Deepak Agarwal, PW/13 Radahraman Sharma and PW/10 Ashok Kumar were recorded u/s 161 Cr.P.C. On 06/08/1996 the witnesses were called for preparing the panchnama of the dead body, the report of which is Ex. P/2. On the same date statements of Anil Kumar, Suresh, Murari, Navin, Ramsingh, Tularam and Gopal were also recorded u/s 161 Cr.P.C. and accused Ramratan, Jagdish Prasad, Ramvilas and Dinesh were arrested and arrest memos from Ex.P/15 to Ex. P/18 were prepared. Memorandum Ex. P/3, u/s 27 of Evidence Act of accused Dinesh Sharma was prepared and at his instance one 12 bore gun was recovered and a seizure memo Ex.P/4 was prepared. PW/9 Shivnarayan prepared a panchnama Ex.P/13 of the seized blood stained shirt of Ashok and obtained permission to prosecute Dinesh Sharma vide Ex. P/5. PW/4 Dr. Yogendra Singh examined the dead body of deceased Kukku and submitted his report marked as Ex. P/6. Omprakash prepared the spot map which is marked as Ex. P/8. Charge sheet was then filed by the investigating Officer before the concerned Magistrate and since the matter was triable by Sessions, it was committed to the Sessions Court and the session was put to trial.
76. Charges were framed under the above sections, which were denied by the accused persons and in their statements u/s 313 of Cr.P.C. they submitted in defense that complainant Ashok had murdered one Mansharam, who was the brother of accused Ramlakhan and since they had deposed in that matter, they had falsely been roped in the matter.
7. To bring home the charge, the prosecution examined in all fourteen witnesses and brought on record the relevant documentary evidences through the aforesaid witnesses. According to the case of the prosecution, PW/6 Deepak Agarwal, PW/10 Ashok Kumar Sharma (injured) & PW/13 Radharaman Sharma were the eye witnesses to the incident. DW/1 Laxminarayan, DW/2 Krishnamurari Sharma were examined by accused Dinesh (since acquitted) and DW/3 Mehtab Singh was examined by Appellant Ramlakhan in defense to prove the factum that the incident had not been committed by the appellants, they were not present on the scene of crime and they had falsely been implicated.
8. The Sessions was put to trial and after detailed scrutiny the appellants herein were convicted for the aforementioned offence for the sentence as mentioned above. Aggrieved this appeal had been preferred.
ARGUMENTS
9. Counsel for the appellants contended that the implication of the present appellants in the incident had not been proved by 8 the prosecution beyond reasonable doubt and benefit of doubt should go in favor of the appellants. To demonstrate this aspect he took this court to Ex. P/10, which is the spot map and argued that the time of reaching on the spot mentioned therein is 22:40 hrs, whereas as per Ex.P/7, which is the application for examination of the dead body, the time mentioned for sending the dead body for examination is 22:30 hrs, thus, the spot map Ex. P/10 is a document which was not prepared at the spot rather was prepared somewhere else, thus creates doubt about the prosecution story. It was further argued that the injuries sustained by injured Ashok is not sustained in the present incident as his shirt which is alleged to have been seized vide Ex. P/13, in the present matter, was already seized in some different Crime No. 260/96 and even in the F.S.L report Ex. P/25 there is a mention that the Article "E" which was a packet containing blood stained shirt of Ashok, send for examination was not in the S.P. memo, which creates doubt about Ashok getting injured in the present matter.
10. In furtherance of his arguments counsel for the appellants stated that the names of the accused persons were not known to the Police at the first instance otherwise the names of accused persons would had been mentioned in the requisition application for post mortem Ex. P/7, which is not there and further there is an overwriting in the name of appellant Ramlakhan in the F.I.R., which indicates that he had falsely been implicated and belies 9 the entire story of the prosecution. It had also been argued that no independent eyewitness had been examined and since the alleged eyewitnesses are interested witnesses cannot be and should not be believed. It was also submitted by the counsel for the appellants that the appellants were arrested in the police station and the entire paper formalities were conducted at the Police station only, that's why none of the attesting witnesses had supported the prosecution story, which contradicts the prosecution version of the story and cannot be believed and the benefit of the same should be granted to the appellants and they should be acquitted.
11. To bolster his submissions he placed reliance on the decision of Hon'ble Supreme Court in the matter of Mehraj Singh Vs. State of U.P. reported in 1995 Cri.L.J 457 and while referring to para 12 to 16 try to emphasis that in actuality it was a blind murder and the evidence showed that none of the eyewitness had actually seen the incident and the so called eyewitnesses were introduced after thoughtful deliberations and consultations. He further placed reliance in the matter of Sudarshan & another Vs. State of Maharashtra reported in 2014 Cr.L.R. (SC) 660 for the same proposition. Another case of Hon'ble Supreme Court of M.C.Ali Vs. State of Kerela reported in (2010) 2 SCC (Cri) 885, was cited in support of his above submissions.
12. On the strength of the above arguments it was submitted 10 that the appellants had falsely been implicated, the appeal deserves to be allowed and the appellants be acquitted of the charges levelled against them.
13. Per Contra learned counsel for the State submitted that except for minor discrepancies in the statement of the injured eyewitness PW-10 Ashok, he remained consistent through out his testimony. The F.I.R. was lodged by him immediately within 35 minutes of the incident and had specifically named the appellants and their individual role. Even in his statement u/s 161 Cr.P.C. he had specifically named the appellants as the assailants. He further submitted that from the ocular evidence of the other eyewitnesses the involvement of appellants Ramniwas @ Ramvilas (since deceased) and Ramlakhan as the main accused to had fired the gun shots is very well established and the presence of the third appellant Gudda @ Satyanarayan is also well ascertained. He further submitted that there is no illegality in the judgment and order passed by the trial court. He further submitted that there is no illegality in the judgment and order passed by the trial court.
DISCUSSION
14. At the outset, it is required to be noted that there were seven accused persons who were tried together for the offences under Sections 148, 302, 302/149, 307, 307/149 I.P.C. and 25(1)
(a)/27 Arms Act. The learned trial Court convicted accused Nos. 1 and 2 in Criminal Appeal No.126/2001 for the offences under 11 Sections 302, 307/34 IPC & 302/34, 307 I.P.C. respectively and appellant in Criminal Appeal No.130/2001 u/s 302/34, 307/34 I.P.C. and sentenced them to undergo life imprisonment and a fine of Rs.5,000/- respectively. However, the learned trial Court acquitted rest of the four accused persons.
15. The contention on behalf of the appellants basically is that it was blind murder and due to previous animosity their names had been implicated. Counsel for the appellants made a valiant attempt in criticizing the judgment of the Trial Court while taking exception to the anti-timed documents submitted by the prosecution on the ploy that the time of reaching of the Police on the spot as mentioned in the spot map Ex. P/10 is 10.40 p.m., whereas in requisition form for postmortem, the time for sending the dead body to the hospital is mentioned as 10.30 p.m. and till that time the names of the accused persons were not known as no names were mentioned in the requisition form Ex. P/7, which indicates that as an after thought and after deliberations names of the appellants were drawn in the incident.
16. The above submission has no force as there was a prompt F.I.R. (Ex. P/14) recorded at the behest of injured complainant PW/10 Ashok, who just after 35 minutes approx. of the incident had reached the Police Station at 9.05 p.m. (the time of the incident mentioned in the F.I.R. (Ex. P/14) is 8.30 p.m. approx.) and had narrated the incident to the Police. This fact had also 12 been corroborated by PW-14 Saligram singh. In the F.I.R. the names of the accused persons with their individual overt acts attributable to them were mentioned in detail. Further in the so called dying declaration Ex.D/2 (which could be treated as statement u/s 161 Cr.P.C., as the injured is still alive), which is in question and answer form also suggests that in his full consciousness he had named the appellants, thus, non- mentioning of the names of the appellants in the requisition form for postmortem Ex. P/7 is not fatal to the prosecution story. Further, slight discrepancy in the time mentioned for preparation of the spot map and sending of the dead body for postmortem is also of not much significance/consequence as the F.I.R. had been promptly recorded and the time of the incident and its occurrence therein commensurate with the ocular evidence of the injured eyewitness, some incongruities in the timings mentioned in the documents prepared by the investigating Officer cannot be said to be fatal.
17. So far as contention of the counsel for the appellant as to seizure of the shirt of injured Ashok in some other crime, suggesting the seizure to be bad as it was already seized in some other crime, has no force as no questions in that regard were asked to PW/9 Shivcharan Singh, who had deposed in Para 2 of his statement that he had seized the shirt of PW/10 Ashok on 19/01/1997 and the seized shirt received by him was kept in a separate bundle. Now raising this issue is of no consequences, 13 coupled with the fact that in the F.S.L. examination corresponding hole's on the right upper side i.e. towards shoulder were found on the shirt, which were marked as H1 & H2 respectively and which indicated the corresponding entry and exit wound's.
18. With regard to the contention about the credibility of the interested/injured eye witnesses as advanced by the counsel for the appellants due to the reason that PW-10 Ashok was one of the accused in the murder case of one Mansharam, brother of accused Ramlakhan, therefore, as there was a previous enmity between the parties, false involvement of the present appellants cannot be ruled out, firstly the status of the eye-witnesses is required to be seen. PW-6 Deepak Agrawal is an independent witness, PW-10 Ashok is an injured eye-witness and PW-13 Radharaman Sharma is cousin brother of PW-10, they are in no way related to the deceased Kukku. It is an uncontested fact that the testimony of an interested witness lacks reliability and mandates corroboration for its acceptance. Furthermore, it is also well settled that interested witness desires conviction of the accused, therefore, due caution in judicial approach is a must while taking such testimony into consideration. It is an established position that the testimony of an interested witness cannot be discredited owing to the ground of it being an evidence of partisan nature. However, the courts are required to be guarded while scrutinizing such evidence which requires 14 corroboration to a material extent. Here, the acceptance of evidence is dependent upon two factors viz., first, scrutiny by the court and, second, caution while considering such evidences.
19. Now on the touchstone of the above principles when the facts of the present case are put to test it becomes evident that PW-10 Ashok himself is an injured witness, who had lodged the F.I.R. promptly within 35 minutes of the incident and had named the appellants as the assailants with their individual roles. It was specifically stated that Ramlakhan fired a gunshot at Kukku which had blown off his head, Ramniwas @ Ramvilas (since deceased) had caused gunshot injury to him and Gudda @ Satyanarayan was present on the spot with a gun. His statement was duly corroborated with the statement of another eye-witness PW-13 Radahraman Sharma and also from the statement of PW-6 Deepak Agrawal, though he was declared hostile, but had supported the prosecution story and the version of the PW-10 Ashok, to the extent of seeing some persons firing near the pan shop and also seeing deceased Kukku lying dead on the spot and injured Ashok with a gunshot injury on his shoulder, thus, there is bursting corroboration of the evidence of PW-10 Ashok.
20. Apart from the above there is medical evidence to prove the fact that PW-10 Ashok was on the same day i.e. on 05/08/1996 send for treatment and his M.L.C. was done at 11.30 p.m. (Ex.P/12) and in the night itself he was send for X-ray.
15This fact was duly corroborated by the Doctor who had initially treated him i.e. PW-7 Dr. Siyaram Sharma and also by PW-12 Dr. Ravindra Kumar Sikarwar who did the X-ray of PW-10 Ashok on 06/08/1996 at 1.00 a.m. Further, the statement of PW-4 Dr. Yogendra Singh assumes importance, who had conducted the autopsy of deceased Kukku @ Shivkumar and had found a gun shot injury on the head with an entry wound of 3 x 2 cm on the mid line of the head with a piece of bone missing on the back side of the parietal occipital region, which was found on the spot and seized vide Ex. P/11 and proved by PW-6 Deepak Agrawal.
21. Thus, in view of the law laid down by the Hon'ble Supreme Court in the case of Jarnail Singh and Others v. State of Punjab reported in (2009) 9 SCC719, the testimony of the injured witness will have a Special evidentiary status. Similar view is taken by the Hon'ble Supreme Court in the case of Abdul Sayeed v. State of Madhya Pradesh reported in (2010) 10 SCC 259.
22. So far as motive to kill Kukku @ Shivkumar is concerned in Shivaji Genu Mohite v. State of Maharashtra, (1973) 3 SCC 219 and Bipin Kumar Mondal vs. State of West Bengal, (2010) 12 SCC 91, the Supreme Court had held that, "In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable 16 eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence.
Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eyewitness is rendered untrustworthy."
23. Thus, the present matter since is a case of direct and clear evidence, there is no need to attach undue emphasis or importance to the motive behind the crime and learned Trial Court had rightly convicted the appellant Ramniwas @ Ramvilash (since deceased) u/s 302 I.P.C. and other appellant Ramlakhan u/s 302 I.P.C. with the aid of 34 I.P.C.
24. So far as conviction of appellant Ramlakhan u/s 307 I.P.C. for causing grievous injury to Ashok, it is required to be seen what are the ingredients to prove an offence under Section 307 of IPC. and whether they are attracted to prove the appellants guilty under section 307 I.P.C.
25. On perusal of the provision, it is apparent that whoever does any act, with intention or knowledge, which may cause death and in furtherance to the said intention and knowledge, he was doing an act towards it, however, it is required to be 17 substantiated with the evidence brought on record by the prosecution whether the ingredients to prove, the case of prosecution beyond reasonable doubt, the charge under section 307 and Section 307/34 IPC have been established. From the testimony of PW-10 Ashok, it is amply clear that Ramlakhan alongwith other co-accused persons came in a Maruti Van and had fired the first gun shot at Ashok, which hit him in his shoulder and as he ran from the spot, he again saw Appellant Ramlakhan firing second shot at him, which he managed to escape. On the other hand co-accused Ramniwas @ Ramvilash (since deceased) had already shot Kukku @ Shivkumar in his head.
26. From the act of the accused persons it can be deduced that the act, irrespective of its result, was done with the intention and knowledge and under circumstances mentioned in section 307 I.P.C. It is very well settled by now that an attempt in order to be criminal need not be the penultimate act, it is sufficient in law, if there is present an intent coupled with some overt act in execution thereof, which is evident from the very acts of appellant Ramlakhan and Ramniwas @ Ramvilash (since deceased).
27. There are several judgments of the Hon'ble Supreme Court where it had interpreted Section 307 of the Penal Code. In State of Maharashtra v Balram Bama Patil reported in (1983) 2 SCC 28, the Hon'ble Supreme Court held that it is not 18 necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted:
"9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
(Emphasis supplied)
28. In State of M P v Saleem reported in (2005) 5 SCC 554, this Court held thus:
19"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."
(Emphasis supplied)
29. In Jage Ram v State of Haryana reported in (2015) 11 SCC 366, this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:
"12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the 20 nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc."
30. The above judgments of the Hon'ble Supreme Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.
31. Further, since no guns were recovered from the appellants Ramlakhan and Ramniwas @ Ramvilash (since deceased) (as the solitary gun, which was recovered from Dinesh, had been acquitted), it may crop up that in absence of recovery of any weapon, should lead to the exoneration of the accused persons. In this regard, the Hon'ble Supreme Court had time and again held that non-recovery of weapon in such cases cannot alone be taken as a ground to exonerate the accused persons from the charges, when their act is outspread in the ocular statements of 21 the eye witnesses and when the said statements are found to be irreproachable.
32. In Krishna Mochi & Ors. Vs. State of Bihar [(2002) 6 SCC 81], the Hon'ble Supreme Court of India held :
"It has been then submitted on behalf of the appellants that nothing incriminating could be recovered from them, which goes to show that they had no complicity with the crime. In my view, recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable."
33. In Lakshmi Vs. State reported in (2002) 7 SCC 198, it was held that it is not an inflexible rule that weapon of assault must be recovered and the Hon'ble Supreme Court did not accept as a general and broad proposition of law that in case of non-recovery of the weapon of assault, the whole prosecution case gets torpedoed.
34. In State of Rajasthan Vs. Arjun Singh and Ors. AIR 2011 SC 3380 the Hon'ble Supreme Court held that:
"Recovery evidence - Absence of recovery of pellets from scene of occurrence or from body of injured persons Cannot be taken or construed as no occurrence of firing as suggested by 22 prosecution has taken place - Mere non- recovery of pistol or cartridge does not detract case of prosecution where clinching and direct evidence is acceptable - Moreso, when gunshot injuries tallied with medical evidence."
35. In Mritunjoy Biswas Vs. Pranab alias Kutti Biswas and Another (2013) 12 SCC 769, the Hon'ble Supreme Court held that :
"There is ample unimpeachable ocular evidence corroborated by medical evidence - Mere non-recovery of weapon from accused does not affect prosecution case".
36. Thus, in gaining facts and situations since there is clinching evidence of PW-10 Ashok, with due substantiation from PW-13 Radharaman and PW-6 Deepak Agrawal, there is no iota of doubt left that appellants Ramlakhan and Ramniwas @ Ramvilash (since deceased) with a common object and intention and with premeditation of minds had opened the fire, resulting in death of Kukku @ Shivkumar and grievous injury to Ashok.
37. Lastly, so far as involvement of accused/appellant Gudda @ Satyanarayan in the incident is concerned, the argument of his counsel for his innocence is now to be scrutinized. The author of the F.I.R. PW-10 Ashok, had named the Gudda @ Satyanarayan as one of the accomplices in the F.I.R (Ex. P/14), 23 which was recorded at 9.05 p.m., in his dying declaration Ex.D/2 recorded at 11.35 p.m., he had stated that Gudda @ Satyanarayan got down from the Maruti Van and asked for some packet (pudiya) and the other co-accused persons fired gun shots. Again, in his statement u/s 161 Cr.P.C. Ex.D/1, which were recorded on the 05/08/1996 itself, he stated that appellant Gudda @ Satyanarayan was sitting in the Maruti Van along with Dinesh and lastly in his Court statement he didn't name him at all. So far as other eyewitness PW-6 Deepak Agrawal is concerned, though he had named Gudda @ Satyanarayan under his 161 of Cr.P.C. statement to be present on the spot and had fired gun shots, but in his court statements he didn't support his version rather stated that PW-13 Radharaman had told him that gunshots were fired by Ramlakhan & Gudda. In contrast PW-13 in his statement u/s 161 Cr.P.C. though had stated that Gudda @ Satyanarayan was standing with a gun and had also fired at the Pan shop, but in his court statement he had not named him, except that all the accused persons were firing, coupled with the fact he also had not stated that he had told PW-6 Deepak Agrawal that Gudda @ Satyanarayan had also fired the gun. Thus, the case of Gudda @ Satyanarayan appears to be similar to that of the persons acquitted.
38. Thus, in the above factual matrix, since the involvement of appellant Gudda @ Satyanarayan is on the basis of section 34 I.P.C. this Court is required to see whether the provisions 24 thereof are attracted herein?
39. The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgments:
Suresh v State of U.P. ((2001) 3 SCC 673):
"24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co- accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co- accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be 25 done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.
xxx xxx xxx
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence.
The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in 26 furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:
"22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused -- though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:
"24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under 27 Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."
Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]:
"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(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 in 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 the criminal act and 28 common intention 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 participant in the joint act which is the result of their combined activity.
21. 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 29 the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22. 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 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 v. State of Punjab 1991 (1) SCC 519).
23. 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 predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case..."
40. Thus, in the light of above proclamations of the Hon'ble Supreme Court, the law which emerges that the ingredients of section 34 I.P.C. are -
1. A criminal act is done by several persons;
2. The criminal act must be to further the common intention of all;
303. There must be participation of all the persons in furthering the common intention.
41. In the above context if the case of appellant Gudda @ Satyanarayan is seen it could be gathered that though he had been named in the F.I.R., except for omnibus statement of the eyewitnesses, none of them had stated about his individual participation nor had stated that he was the having a common intention in furtherance of which the act was committed. Also, Learned Trial Court only on the basis of the statement of PW-6 Deepak Agrawal that he was told by PW-13 Radharaman Sharma about the presence of the appellant, whereas PW-13 Radharaman Sharma no where stated that he told PW-6 Deepak about the presence of the appellant, the presence of him on the scene of occurrence appears to be doubtful. Even otherwise, for the sake argument if his presence is said to be there when the felony was committed, if he had not taken any part in it, and had not acted in concert with those who commit it, he cannot be said to be the principal merely because he did not endeavour to prevent it or to apprehend the felon.
42. As a result, the judgment of conviction and sentence dated 23/02/2001 passed by Sessions Judge, District Morena (M.P.) in Sessions Trial No.188 of 1997, so far as it relates to Cr.A. No. 126/2001, with relation to Ramniwas @ Ramvilash (since deceased) and Ramlakhan is hereby affirmed, but so far as it relates to Gudda @ Satyanarayan, appellant in Cr.A. 31 No.130/2001 it is set aside.
43. Since appellant in Cr.A.No.126/2001 Ramlakhan is on bail, his bail bonds and surety bonds are cancelled and he is directed to surrender immediately to the Trial Court concerned to serve out the remaining jail sentence. So far as appellant no.1-Ramniwas @ Ramvilash (since deceased) is concerned since this Court has held him to be guilty for offence committed under sections 302 and 307/34 I.P.C, the appeal pursued by his legal representatives is hereby dismissed. Similarly, appellant Gudda @ Satyanarayan in Cr.A. 130/2001 is also on bail, his bail bonds are discharged and he is acquitted from the charges u/s 302/34 and 307/34 I.P.C.
44. Let a copy of this judgment be sent to the concerning jail authorities forthwith and also a copy of this judgment along with record be sent to concerning Trial Court for information and compliance.
(Rohit Arya) (Milind Ramesh Phadke)
Judge Judge
16/12/2022 16/12/2022
Pawar/-
ASHISH
PAWAR
2022.12.16
18:35:38
+05'30'