Rajasthan High Court - Jodhpur
Rakesh @ Rodia & Anr vs State on 7 April, 2017
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Criminal Appeal No. 350 / 2009
1. Rakesh @ Rodia S/o Sharwan Kumar, B/c Mochi, R/o Ward
No.10, Suratgarh, District Sri Ganganagar.
2. Sanjay @ Baba S/o Mangi Lal, B/c Bhargava, R/o Ward
No.24, Suratgarh, District Sri Ganganagar.
[Presently lodged in Central Jail, Bikaner]
----Appellants
Versus
The State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. R.S. Gill
For Respondent(s) : Mr. J.P.S. Choudhary, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment (per Hon'ble Moolchandani, J.) REPORTABLE:-
07/04/2017 Validity of judgment dated 04.02.2008 passed by Additional Sessions Judge, Fast track, No.3, Hanumangarh convicting the appellants-accused under Sections 302-120-B and 392 IPC in Session Case No.19/2007 (25/2006) has been challenged by this criminal appeal.
2. Brief facts relating to the crime reveals that on 03.03.2005 Vijay Kumar (PW-1) submitted a written information to the S.H.O., P.S. Pilibanga alleging inter alia that:
"fuosnu gS fd izkFkhZ ds HkkbZ f"koukjk;.k dh e.Mh ihyhcaxk esa eksfgr VzsMlZ ds uke fdj;kus ds lkeku dk gksylsy dk dke gSA vkt "kke (2 of 28) [CRLA-76/1989] dks djhc ikSus ukS cts dh ckr gS , eSa esjs HkkbZ dh nqdku ls dqN nwj cktkj dh rjQ [kM+k Fkk vpkud esjs HkkbZ dh nqdku dh rjQ "kksj gqvk eSa nqdku dh rjQ Hkkxk rks ns[kk fd esjs HkkbZ f"koukjk;.k dks rhu O;fDr;ksa us ?ksj dj j[kk Fkk rhuksa toku mez ds Fks esjs HkkbZ ds gkFkksa esa ,d cSx FkkA cSx ds vUnj cktkj ls mxkbZ ds :i;s o nqdku ds dkxtkr FksA oks rhuks O;fDr esjs HkkbZ ls cSx Nhuus dh dksf"k"k dj jgs FksA esjs ns[krs&ns[krs ,d O;fDr us esjs HkkbZ ds duiVh ij fiLrksy dh xksyh ekjh ,d O;fDr us esjs HkkbZ ls cSx Nhu fy;k esjk HkkbZ tehu ij nqdku ds vkxs fxj x;k oks rhuksa xaxkjke ds gksVy ds vkxs ls LVs"ku dh rjQ Hkkx x;s ml le; ckdh nqdkusa can Fkh ckn esa dkQh vkneh vk x;sA ge yksx esjs HkkbZ dks ihyhcaxk gLirky os vk;sA Mk0 lkgc us dqN bykt fd;kA esjk HkkbZ csgks"k Fkk tks dqN gh nsj esa ej x;sA eSa mu rhuks O;fDr;ksa dks vkbank ns[kdj igpku ldrk gwWaA"
On the basis of this report, FIR No.30/2005 was registered at P.S. Pilibanga for the offences under Sections 302, 394 IPC and 27 Arms Act on 03.03.2005 and after due investigation, accused-appellants were charge-sheeted for the offences under Sections 302, 396, 395, 120B and 412 of IPC and Section 27 Arms Act.
3. The learned trial court framed charges against the appellants-accused for the offences under Sections 395, 396, 302 and 120B IPC and all were tried, the prosecution produced 21 witnesses and got 76 documentary evidence exhibited. The accused-appellants were examined under Section 313 of Cr.P.C. and defence examined DW-1 Sukhdev Singh in their defence. The learned trial court, acquitted two co-accused from all the charges and convicted both the appellants for the offences under Sections 302/120B and sentenced them for life imprisonment with a fine of Rs.5000/- in default to undergo three months' rigorous imprisonment and seven years' rigorous imprisonment with a fine of Rs.2000/- in default whereof to undergo one month's rigorous imprisonment for the offence under Section 392 IPC, both the (3 of 28) [CRLA-76/1989] sentences were ordered to run concurrently. Accused Ravi was declared a Juvenile, so his trial was conducted by Juvenile Board/Court, same is apprised to have been culminated in conviction.
4. Heard the submission of rival sides, learned counsel for the accused-appellants has contended that trial Court has committed manifest error in arriving at the findings because prosecution has failed to produce reliable evidence with respect to alleged conspiracy and witness corroborating the alleged factum of conspiracy PW.3 Mahesh Kumar has not been believed and relied by the trial Court, so in absence of such a evidence, rest of the accused-appellants cannot be convicted under Section 120-B IPC and there is no charge under Section 34 of IPC, so conviction of both the appellants as ordained by trial court under Section 302/120-B is not sustainable, all the witnesses are relatives and no eye witness was there but the trial Court has wrongly relied upon their statements, recoveries are not made according to the provisions of the Evidence Act, two of the accused persons have already been acquitted by the trial Court, which goes to say that the story of the prosecution was a bundle of falsehood and on the same, allegations, rest of the accused persons may not be held guilty and convicted, so the appeal be allowed and both the accused-appellants be acquitted.
Per contra, learned public prosecutor has contended that there is no illegality in the findings of learned trial Court, had it been wrong then all the accused persons would have been convicted, but learned trial Court has properly evaluated (4 of 28) [CRLA-76/1989] evidence of each and every witness and has based the judgment on it. PW.1 and PW.2 have witnessed the incident by their own eyes and they have narrated ocular testimony, recoveries of the looted cash and belongings of deceased Shiv Naraian have also been made on the instance of accused persons and their cloths have also been found tainted with blood of "A" group, which have been found on the wearing apparels of deceased person, ballistic expert has also opined that the fire was shot and the pistol was found with the residue of fire particles, its barrel was found giving odour of fire. Accused were identified at the time of committing offence and they were kept "baparda" and in their identification test parade, they have been identified by the witnesses before a parade conducted by a Judicial Magistrate, who has also been examined as PW.11 and has confirmed the same. Learned public prosecutor has further contended that in view of the provision of Section 464 of CrPC, the accused persons have not been prejudiced by alleged non-joinder or omission of a charge of common intention and there is no effect on the findings, they have committed murder and robbed an innocent trader, who resisted loot and was shot at by the accused persons, acting in concert and in furtherance of common intention, so sentence and findings be upheld and appeal be dismissed.
5. Perusal of evidence which is available on record of trial court goes to suggest that the prosecution has produced material and reliable eye witnesses in support of their story, prominent part of it are as under.
(5 of 28) [CRLA-76/1989] PW-1 Vijay Kumar author of F.I.R. and real brother of deceased, who used to return to home along with his deceased younger brother, since all the brothers have been said to be living in close proximity though they were working separately.
6. PW-1 Vijay Kumar has narrated everything in a meticulous and categorical way. He has said, on that day he had called "Mahesh Kumar" to meet at the shop of his deceased brother, where this witness was approaching after closing his shop and soon as he reached near the shop of his brother, he found that his brother was beseized and surrounded by three persons, who were trying to snatch his cash-bag and the deceased countering and endeavouring to resist the loot attempt, he has narrated that by that time, Mahesh Kumar, also approached there, who, too witnessed the entire unfortunate and attempt of loot, which was being made by the culprits collectively and has further said that one amongst three culprits was bit tall, was equipped with "fire-arm", fired at his deceased brother and all fled away after looting bag of his brother. Vijay Kumar PW-1 as well as Mahesh Kumar PW-2 have ratified and corroborated this episode in their ocular testimony. Perusal of police statements of both these witnesses goes to show that their testimony is almost identical, nothing abnormal or contradictory has emerged from their testimony, trite contradictions which have occurred, adds truthfulness and verity to the evidence being natural.
PW-1 Vijay Kumar, the author of the FIR has said that the event belongs to about one and half years back of 3.3.2005, quarter to 9 had struck, he was there in the lane of his (6 of 28) [CRLA-76/1989] brother Shiv Narayan shop, he heard clamour from the side of the shop of his brother, so he rushed to that side, where he found three young boys aging of 20 to 21 years had surrounded his brother Shiv Narayan, one was having pistol in his hand, he was trying to snatch bag from the hand of his brother Shiv Narayan and tall sized boy fired shot at his brother and after snatching his bag, all the three fled away. He has said that the bag was containing documents of shop, currency, purse and watch etc., he has further said that he, Mahesh, Kuldeep took his brother to the hospital, where after few moments his injured brother was declared dead. He has ratified Ex.P.1 FIR and accepted his signatures over it. He has further said that he can identify all these three persons and during the course of testimony, he has correctly identified two accused-persons "Sanjay alias Baba" and "Rakesh", who were present in the Court that day, subsequently, he has confirmed veracity of Ex.P.2, P.3, P.4,P.5. P.6 and P.7 and has ratified them. He has further said that after 15 to 16 days later to the occurrence, identification of accused persons was conducted by Magistrate Sahab per Ex.P.8 and P.10, which contains his signatures, he has further said that his deceased brother Shiv Narayan used to bring yield of about 25-30 thousands daily, which he used to keep in his bag, in his cross- examination, he has further said that they all four brothers reside at the same place and has clarified that he was accustomed to come to his deceased brother's shop and both used to go home together after closing their shops. He has said that he and Mahesh supported in putting and helping injured Shiv Narayan to (7 of 28) [CRLA-76/1989] hospital by a jeep, so their cloths and hands also got smeared with blood, anything causing weakness or contradiction or suspicion or causing adversity on the merit of the testimony has not emerged from the evidence of this witness, likewise PW-2 is also a witness of the incident, who too viewed the incident by his own eyes and has made an "ocular version" of the incident by saying that the occurrence belongs to one and half years back, it was about quarter to 9 of the evening, he was coming towards the shop of Shiv Narayan, where he was scheduled to meet Vijay Bansal, soon as he reached near the shop of Abhoria, he found Vijay rushing towards the shop of Shiv Narayan, so he too acted alike, as soon as they reached the shop of Shiv Narayan, they found that Shiv Narayan was surrounded by three young chaps, one was having pistol in his hand and they were trying to snatch bag from Shiv Narayan. Suddenly, one, who was having pistol in his hand, opened fire at Shiv Narayan and all the three fled away after snatching bag of Shiv Narayan, they shouted, people gathered, Shiv Narayan fallen there, so he, Vijay Bansal and Kuldeep took Shiv Narayan to the Government Hospital Pilibanga, where Doctors started treating him, but soon they declared Shiv Narayan dead, he too has said that boy, who opened fire was bit tall, fair complexioned having tiny moustache, rest two were of average hight, one of Wheaties complexion and another was non- fair.
7. He too has identified two accused persons during the course of trial by correctly denoting Sanjay alias Baba and Rakesh alias Rodia, third one stated not to be (8 of 28) [CRLA-76/1989] present, on that date, this witness has also ratified Ex.P.2, P.3, P.4 and P.5 and has confirmed the same, further he has narrated that 15 to 16 days later to the event, identification test parade of accused persons was conducted in the jail by Magistrate and Exhibit 8 and 10 were prepared, which contain his signatures, this witness has also been cross-examined minutely but if we scan police statements of this witness, which are exhibit D.1, we find that nothing abnormal which could be said to be material or unnatural has emerged, which could be contradictory or causing adversity to the value of testimony of this witness, so testimony of this witness is also creditworthy.
PW-3 Mahesh Kumar is a tea shop keeper of the vicinity of the shop of the deceased, he has narrated that five accused persons namely Labh Singh, Sanjay alias Baba, Vijay alias Bunti, Ravi, Rakesh alias Rodia had visited his tea shop on 3rd March in the evening at about 7:30 to 8 PM and he while serving, over-heard, they were talking to loot someone, when he reached near them, they turned silent. He has further said that he had seen Ravi was having something alike pistol in his pocket, he has further said that "he over-heard, like Labh Singh was saying that in the lane of Ganga Ram, they were to plunder a Baniya, who used to return with money bag from Mandi, when all shops are almost close", then all went in the lane of Ganga Ram after sometime a bang sounded and acrimony occurred, he got puzzled and after closing shop, he went away to his residence, cross evidence of this witness, discloses that testimony and attitude of this witness has not remained (9 of 28) [CRLA-76/1989] trustworthy since he has not narrated the kind of serious nature over-hearing, which he over-heard from the accused persons, while serving tea and water in his tea shop. Some unusual has also emerged from the cross-examination of this witness since he has said that he witnessed pistol like object, when he went to serve water, when he went to serve tea they again kept mum, it appears to be bit unusual that a gang of criminals would visit in a tea shop with palpably visible weapon and utter amongst themselves that after some time, shops will be closed, a Baniya will come with bag, who was targeted to be looted and this tea shop keeper, instead of sharing of these unnatural to the adjacent shop keepers or police authorities, goes silently to his home, so creditworthyness of testimony of this witness got eroded because of being unnatural, so has correctly not relied.
PW4 Ganga Ram is a witness having tea and milk shop near by, he has dded that about one and half year back at the time of half past 8, he heard a sound and found three young men running away towards station side, when he went near the shop of Shimbu teawala, then found that a body was being carried and taken away and people were gathered, he too has said that on going to hospital, he found that the individual was shot at head but he had said that he could not recognize culprits, testimony of this witness goes to show that three young chaps were there, who were fleeing away from the side of occurrence after committing unlawful, testimony of this witness fortifies creditworthyness of entire evidence and evidence of ocular say as discussed earlier of PW.1 and PW.2.
(10 of 28) [CRLA-76/1989]
8. PW-5 Prem Prakash brother of deceased has further confirmed and ratified arrest memos and recoveries of weapon, he has ratified arrest memo of accused Sanjay being Ex.P.12 and 13 of Labh Singh and has accepted his signatures on these documents and with respect of recovery of pistol and cartridge, he has said that Ravi Kumar took them near the house of "Babulal Parshad" and from nearby house, he dug out a polythene containing a pistol, two live cartridges and one empty cartridge, pistol was emanating odour, police sealed the empty cartridge and pistol and two live cartridges, its recovery memo is Exp.P.14 and sketch map is Exhibit 15 and 16, which contains his signatures.
PW-6 Madan Lal is also witness of "recovery" who has said that he had gone to Hisar with police party about quarter to two years back. "Ravi Kumar" and "Rakesh" were there, they had informed their names being Ravi Kumar and Rakesh confirming Exhibit 17, he has said that on search of Ravi Kumar Rs.5200/- was found with a purse containing identity card of Shiv Kumar with some currency notes and Ex.P.17 contains his signatures, he has further said that on search of Rakesh, Rs.3800/- were recovered along with a steel watch of the chain and on the lock of the chain, Shiv Kumar was embossed, its memo is Exhibit 18, he has further confirmed arrest memo of Labh Singh and Sanjay alias Baba Ex.P.12 and P.13 and has said recovery memo of Ravi Kumar is Ex.P.19 and recovery of memo pertaining to Rakesh is Ex.P.20, he has further said that (11 of 28) [CRLA-76/1989] recovered articles were sealed before him and his signatures were taken on Exhibit 19 and 20, he has further said that on the instance of Ravi Kumar a revolver was recovered vide Ex.14, 15 and 16, which contains his signatures and recovered articles were sealed in a cloth bag, he has further said that on next day Sanjay alias Baba also got recovered a bag on which Gauri Neel was written, recovered bag was containing a seal of Shiv Traders, which was seized by the police there, its memo of recovery is Ex.21.
He has further said that spot map and recovery memo contains his signature, in his cross-examination, he has narrated the things in a straight way and said that bag was got recovered from latrine, it was wet and wiped later, testimony of this witness appears to be reliable.
PW-7 Raja Ram has said that he knows Labh Singh, who is of his village but has denied his police statements, nothing concrete has emerged from his statement.
PW-8 Tilak Raj is also of recovery witness belonging to 'pant' and 'bushirt' from the house of Babu Lal Bhargav by Rakesh alias Rodia, who was 'baparda' and had informed his name, the recovery memo is exhibit 24 and its spot map is exhibit 25. He has said that after reading he had signed Ex.24 and PW-9 Babu Ram is also a witness of recovery of bag Ex.21 and 22.
9. PW.14 Om Prakash Godara, SI is a witness of Ex.P.18 and 20 pertaining to arrest of Rakesh and its fard and he has said that he was also a member of arrest team and vide (12 of 28) [CRLA-76/1989] Ex.P.18 Rakesh @ Rodia was arrested by Sarwan Ali, CI at the time of his arrest Rs.3800/- were recovered from him and an old titan watch, on the chain lock of which Shivnaraian was embossed was recovered from him, which was seized vide Ex.P.20, he has further said that it was confessed by the detenue that the recovered currency and watch were of loot.
PW.15 Lalchand is also a witness of recovery before whom ten currency notes of Rs.100/- were recovered from Labh Singh vide Ex.P.45 and 46.
PW-10 Vinay Kumar has ratified exhibits 5, 6, 7, 2, 3 pertaining to spot of incident and has said that about two years back, Shiv Narayan was shot dead, he has further confirmed Exhibits 24 and 25 and has said that Rakesh Kumar got recovered 'pant' and 'bushirt' from the house of Babu Lal Bhargav from dung mould, in his cross-examination, he has said that he was there, so he signed on the documents, he has further said that Rakesh had signed on the papers before him and he has also said that the detenu said to the police that he is Rakesh, who was 'baparda' .
10. PW-11 Shyamsundar Laata is an important witness of prosecution being a Magistrate conducting identification test parade and he has candidly and minutely narrated the entire process of conducting identification parade and has said that all the accused persons were properly identified by the witnesses and has ratified Ex.8 and Ex.9 and Ex.26 relating thereto, which goes to show that identification of both the accused persons "Rakesh alias Rodia" S/o Sharvan Kumar adopted son of Punam (13 of 28) [CRLA-76/1989] Chand Mochi and that of "Sanjay" was properly been done leaving nothing dubious.
PW.13 Jitendra Singh is a photographer, who has ratified snapping of photographs and has said that Ex.P.27 to Ex.P.33 are its negatives and the positive one from 34 to 40.
PW.12 Ramkishor is a Malkhana incharge, who has ratified Ex.P.41 to 44 and has said that on 04/03/2005, he was thana incharge at Police Station Pillibanga and SHO Ranjeet Singh deposited articles in Malkhana relating to case No.37/05 under Section 302 of IPC, which was entered in Ex.P.41, Ex.P.41A is its copy, on 22/03/2005, Ravataram FC was given these "A", "B", "C" sealed samples for deposit in FSL, its entry is Ex.P.41, which contains his signatures and on 24/03/2005 Ravataram deposited the same and gave receipt, which is Ex.P.42, he has further said that on 09/03/2005 Sarwal Ali, CI, deposited articles from F to K in duly sealed conditions, which were entered in Ex.P.43, its photocopy is Ex.P.43A, these articles were given to Ravataram on 22/03/2005 for depositing in FSL, which were deposited on 24/03/2005 and its receipt was delivered, which is Ex.P.44 and entry relating to delivery of articles to Ravataram is Ex.P.43, which contains his signatures and signatures of Ravataram. Ravataram had given its receipt, which is also entered therein and on 22/03/2005, Jaswant Singh, FC through whom articles were given for Jaipur FSL, which were deposited there vide receipt Ex.P.44, he has further said that the articles were remained properly sealed during his custody.
(14 of 28) [CRLA-76/1989] PW.18 Jaswant Bhakar constable has said that he was posted at thana Pillibanga on 22/03/2005 and was given three packets relating to F.I.R. No.37/05 for depositing in FSL, Jaipur and he got a forwarding letter issued from SP Office, which is Ex.P.49, which contains his signatures and after depositing the same in Jaipur FSL, he gave its receipt Ex.P.44 to Malkhana incharge, he has also said that during the course of his custody, samples remained properly secured and sealed and his departure entry is Ex.P.50 and returned entry in Rojnamcha is Ex.P.51 and Ex.P.5A, 51A are its copies PW.19 Ravataram is also a constable depositing samples, he has said that on 22/03/2005, he was posted at Pillibanga thana and pertaining to F.I.R No.37/05, five packets were given to him by Malkhana incharge in sealed condition for depositing in FSL Jodhpur, he went to the SP Office and got a forwarding letter issued , carbon copy of letter of thana incharge is Ex.P.52 and carbon copy of forwarding letter is Ex.P.53, which contains his signatures, he has further said that after depositing the samples, he had received its receipt, which is Ex.P.42 and during the course of his possession, the samples were well secured and remained sealed and he deposited the same in sealed condition, he has further said that his departure is entered as Ex.P.54 and return as Ex.P.55 in Rojnamcha, Ex.P.54A and 55A are its copies, he has also said that the FSL deposit receipt is Ex.P.42, which was given to Malkhana incharge.
PW.16 Ranjeet Singh is SHO, who was posted at police station Pillibanga on 03/03/2005, on the day when the (15 of 28) [CRLA-76/1989] crime took place, he has said that after getting information, we visited the spot and also went to the hospital and brother of deceased gave him report, on the basis of which FIR was lodged, which is Ex.P1, he has further said that on the information of Vijay Singh, spot map was drawn, which is Ex.P.2 and sample of piece of blood smeared floor was taken vide Ex.P.3, which was sealed and has said that postmortem of the body was got conducted and blood stained clothes of the body were also taken and sealed vide Ex.P.4, Namunaseal is Ex.P.3 and Ex.P.4, he has further confirmed, Ex.P.3 and Ex.P.6 Panchayatnama and acknowledgment of receipt of body Ex.P.7.
11. Perusal of testimony of this witnesses shows that he has remained a partial investigator, who was shifted from the police station, owing to public wrath and further investigation was conducted by another IO Sarwan Ali PW.20.
In his cross-examination, he has narrated micro facts relating to the spot of occurrence, observed by him and has said that shutter of the shop was opened, light inside the shop and outside were on, when he reached at the spot and has said that blood was there at the spot, where shutter enters, blood was there at the point of entry of the shutter and blood was there in the hole, he has further said that he did not find any pellet at the site, since the fire was informed to be made from close proximity and has further said that when he arrived hospital, injured was lying on the operation theater and has observed that Ex.P.2 was drawn on the information of witness.
(16 of 28) [CRLA-76/1989] PW.21 Jailal ASI, has said that on 05/03/2005, he was ASI at thana Pillibanga and was sent for search of accused Sanjay and he had brought Sanjay @ Baba on 07/03/2005 at thana Pillibanga, who was in Nohar at his relative's residence and was further arrested by thanedar saheb,
12. PW.20 Sarwan Ali, IO conducted rest and bulk of the investigation, he has narrated and ratified all the exhibits relating to the investigation and exhibits prepared before him and has ratified Ex.P.7, 11, 12, 14 to 25, 45, 46, 52, 56 to 59, 61 to 75, during the course of testimony, the articles relating to the recoveries have properly been explained and ratified by this witness in the Court, all the recoveries, which have been made from the accused persons, on their instance and recovery of pistol, like cartridges and empty cartridge and clothes of accused persons and recovery of robbed cash, has properly been narrated by this witness, he has further explained that the identification test parade of both the accused persons was conducted by Magistrate and niceties relating to test identification parade and exhibit prepared by the magistrates have also been properly explained and ratified by this witness, this witness has thoroughly been cross-examined, but nothing abnormal has emerged from the cross-examination of this witness and the narration of entire chronology of the investigation is almost similarly confirmed and ratified as the recovery witnesses and as well as eye-witnesses have revealed in their testimony.
13. PW.17 Dr. Hari Om Bansal is a doctor before whom the injured was taken and he attended the injured and (17 of 28) [CRLA-76/1989] subsequently conducted postmortem on the dead body of the deceased, since Ex.P.47 has got a column pertaining to "symptoms observed before death" against which "gasping" is mentioned, which goes to denote that the patient was found "gasping" at the time, when he was brought before death.
14. Dr. Hari Om Bansal has said that on 04/03/2005, he was posted at CSC, Pillibanga, on the request of police dead body of Shivnaraian son of Ram Chandra was examined by him at 8 a.m. , he has said that lividity was present on the dependent parts of the body. Head, chest and face was full of blood and the body was having following injuries :-
"1. Laceration of right eye ball with # of supro-lat wall medial cornor of eye ball cavity with bleeding wound margin are lacerated & inner part of eye ball disrupted.
2. Small rounded lacerated wound - multiple on inferior margin
- .2 to .3 cm-6 in numbers, -margin contused and black.
3. Horizontal wound - 2x.2x.1 cm - 2 in number on lat surface of face. Distal part is tapper.
4. On exposure of skull
- right temporal muscle is haemtomise & pellets are recovered 4 (sic) in number
- meningeal membren healthy
- brain haematomose in Sulci
- deepar part is lacerated near right eye
- pellets are recovered from mainly from right lobe".
He has further opined that after opening the right temporal muscle haematoma sulci area of right eye was lacerated pellets were ousted from right lobe and has further said that cause of death was excessive haemorrhage and brain injury because of cutting of vessels caused by fire-arm and "fire arm" injury was caused from close proximity. Death had occurred twelve hours ante postmortem and he has further said that 26 pallets were ousted from the body, which were sealed and (18 of 28) [CRLA-76/1989] has ratified Ex.P.47, postmortam report is Ex.P.48, Ex.P.48 relates to ousting and sealing of 26 pellets.
15. Examination made under Section 313 of CrPC with respect to accused Rakesh @ Rodia and Sanjay @ Baba reveals that they have denied interrogatories.
16. DW.1 Sukhdev Singh, father of accused Labh Singh has produced himself in defence evidence and he has said that his son Labh Singh was taken to police station on say that he will be interrogated, same day this witness was called by thanedar, who demanded Rs.1000/- from him to release his son, he has further said that he met with the demand and paid Rs.1,000/- to him, he was Barra Thanedar, but he did not release his son, police never came to his residence nor recovered anything, in cross-examination, he has said that he did not apprise anything to high officials regarding it.
17. Upon appraisal of afore-discussed evidence, it is clear that the incident is properly explained by ocular evidence Vijay and Mahesh PW.1 and PW.2 both have withstood meticulous in their ocular say that three young boys aging 20 to 21 years, were trying to snatch bag of his brother Shivnaraian, who was surrounded by these assailants, ultimately accused holding pistol in his hand, fired upon and shot at Shivnaraian and after snatching his bag, all fled away. Weapon of assault country-made pistol has been recovered on the instance and information of accused, recovery of which has properly been narrated by recovery witnesses as well as by investigating officer.
(19 of 28) [CRLA-76/1989] Looted bag of the deceased containing documents of the trade, watch, seal and purse have also been recovered from the accused persons, after arrest, the accused persons Sanjay and Rakesh were kept face cladded and identification test parade of both these accused persons was conducted before a Judicial Magistrate and PW.11 Sri Shyam Sundar Laata has properly explained it that both the accused persons were properly and precisely identified by the witnesses. Even during the course of testimony, both these witnesses have correctly pointed them out, it is not so that they have been identified in the Court for the first time but their identity was primarily confirmed during the course of identification test parade, and they were again identified during the course of evidence as to reaffirm.
Bag of the deceased person, his watch having his name embossed on chain lock, purse and few amount of currency have also been recovered on the instance of the accused persons. Independent witness Shopkeeper PW.1 Gangaram has also asserted that he witnessed three young boys running away after commission of the offence.
18. Ballistic report Ex.P.76 also connects the accused persons with the offence since country made pistol, which has been recovered on the information and at the instance of accused Ravi has been found to be a weapon by which, fire was shot and it was found to be used, as per the Ballistic report as mentioned in Ex.P.76 and 12 bore cartridge has also been opined to be fired from the (20 of 28) [CRLA-76/1989] cartridge case and 26 damaged lead pellets have also been opined to could have been fired from the recovered country made pistol, even rest of the two live cartridge of 12 bore have been found fire worthy and the recovered 12 bore country made pistol has also been found to be serviceable.
Adding to it is FSL report Ex.P.66, which connects accused persons with the crime because it too confirms that "Baniyan" and pant of deceased and bu-shirt of both accused Rakesh and Ravi Kumar have been found to be stained with "A" group blood. Ravi Kumar was held to be a juvenile vide an age enquiry verdicted on 18/01/2006, whose trial has thence been separated for trial through competent juvenile board and the same is stated and apprised to have been culminated in conviction.
Accused "Sanjay" and "Rakesh" have been identified in identification test parade, so their presence and active participation in the crime is established. Recoveries have also been made on their instance, so conviction of all the accused may not be faulted.
19. It is clear that three young persons were there in committing the offence of robbery with murder, one of them was equipped with deadly weapon duly loaded with 12 bore cartridge, all three tried to snatch bag of the deceased, they all went together, surrounded the deceased and acted in furtherance of crime, when failed to grab the belongings and bag, one fired a gun shot, which yielded them to snatch and take away the booty, which was recovered on their information and on the instance of accused persons. All acted in furtherance of their common (21 of 28) [CRLA-76/1989] intention to rob and frustrate resistance by all lethal means in order to procure booty, which was subsequently shared by them and recovered accordingly. Apart from country made pistol weapon of assassination, looted currency has also recovered from Rakesh and some of the booty has also been recovered from co- accused Ravi, likewise pistol has also been recovered on the instance of accused Ravi and purse of the deceased has also been recovered from Ravi, whereas watch of deceased with Rs.3800/- of booty has been recovered from Rakesh alias Rodia, so all the evidence and facts relating to the case of prosecution goes to show that pre-concert to loot and to kill in order to dispel resistance was there, in furtherance of which all the accused persons acted upon and committed the crime. Prosecution has succeeded in establishing its case on the basis of ocular, reliable and trustworthy evidence, well supported by medical evidence with recoveries beyond the contours of reasonable doubtfulness.
19A. Upon examining the entire evidence, it goes to show that the accused persons acted in furtherance of common intention with overt act and all the three persons, who have been held guilty by the trial Court/s were seen in committing the offence, recovery of weapon and looted articles and booty was recovered on their information from their possession, they all distributed the booty amongst themselves, though criminal conspiracy has not been proved because of feebleness and non- creditworthiness of evidence of PW.3 Mahesh Kumar, a tea shopkeeper, but the entire evidence goes to show that all the (22 of 28) [CRLA-76/1989] accused persons concerted and actively participated in the crime in furtherance of common intention, though Section 34 which ought to have been framed altogether was omitted by trial Court, but if we scan entire evidence and charges coupled with explanation of accused person as explained under the provisions of 313 of CrPC, then it is obvious that the nature of charge/s was very much clear to the accused persons and no prejudice could be caused to them if, in lieu of Section 120-B of IPC, Section 34 is replaced and they are punished accordingly.
20. Section 464 CrPC postulates effect of omission of frame or absence of or error, in framing of charge and it says that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision a failure of justice has, in fact, been occasioned thereby. So far as charges are concerned, they have properly been explained and made clear to the accused persons.
Appellant-accused Rakesh @ Rodia and Sanjay @ Baba have been charged as under :-
Accused Rakesh @ Rodia :-
"vkius fnukad 3-3-05 dks 8-45 ih- ,e- ;k mlds yxHkx okds nqdku eksfgr VªsMlZ e.Mh ihyhcaxk esa ikap vU; vfHk;qDrx.k ds lkFk feydj l;aqDr :i ls fd;s x;s "kM+;U= ds QyLo:i f'koukjk;.k ds gkFk ls :i;ksa dk cSx tcju Nhudj MdSrh dk vijk/k dkfjr fd;k vkSj bl MdSrh dks djus esa f'koukjk;.k dh e`R;q lg vfHk;qDr jfodqekj }kjk duiVh ij xksyh dh ekjdj dkfjr dhA bl izdkj vkius gR;k lfgr MdSrh dk vijk/k dkfjr fd;kA ,rn~}kjk vkidk mDr d`R; Hkk-n-l- dh /kkjk 396 ds rgr n.Muh; vijk/k gS tks fd esjs izlaKku esa gSA fodYi esa vkius mDr fnukad] le; o LFkku ij ikap vU; vfHk;qDrx.k ds lkFk vkijkf/kd "kM+;U= ds QyLo:i f'koukjk;.k ds gkFk ls :i;ksa ls Hkjk cSx fcuk (23 of 28) [CRLA-76/1989] mldh lgefr ds csbZekuhiw.kZ vk'k; ls tcju Nhu fy;kA bl izdkj vkius MdSrh dk vijk/k fd;kA ,rn~}kjk vkidk mDr d`R; /kkjk 395 Hkk-n-l- ds rgr n.Muh; vijk/k gS tks fd esjs izlaKku esa gSA vkius mDr fnukad] le; o LFkku ij lgvfHk;qDrx.k ds lkFk ekSds ij ekStwn gksrs gq;s o vkijkf/kd "kM+;U= esa lfEefyr gksrs gq;s lgvfHk;qDr jfodqekj }kjk lk'k; f'koukjk;.k dh duiVh ij xksyh ekjdj mldh gR;k dkfjr dj nhA ,rn~}kjk vkidk Hkh mDr d`R; Hkk-n-l- dh /kkjk 302 lifBr /kkjk 120ch ds rgr n.Muh; vijk/k gS tks fd esjs izlaKku esa gSA vkSj eSa ,rn~}kjk funsZ'k nsrk gwa fd vkidks mDr U;k;ky; }kjk mDr vkjksiks ds fy;s ijhf{kr fd;k tkosAs** Sanjay @ Baba :-
"vkius fnukad 3-3-05 dks 8-45 ih- ,e- ;k mlds yxHkx okds nqdku eksfgr VªsMlZ e.Mh ihyhcaxk esa ikap vU; vfHk;qDrx.k ds lkFk feydj l;aqDr :i ls fd;s x;s "kM+;U= ds QyLo:i f'koukjk;.k ds gkFk ls :i;ksa dk cSx tcju Nhudj MdSrh dk vijk/k dkfjr fd;k vkSj bl MdSrh dks djus esa f'koukjk;.k dh e`R;q lg vfHk;qDr jfodqekj }kjk duiVh ij xksyh dh ekjdj dkfjr dhA bl izdkj vkius gR;k lfgr MdSrh dk vijk/k dkfjr fd;kA ,rn~}kjk vkidk mDr d`R; Hkk-n-l- dh /kkjk 396 ds rgr n.Muh; vijk/k gS tks fd esjs izlaKku esa gSA fodYi esa vkius mDr fnukad] le; o LFkku ij ikap vU; vfHk;qDrx.k ds lkFk vkijkf/kd "kM+;U= ds QyLo:i f'koukjk;.k ds gkFk ls :i;ksa ls Hkjk cSx fcuk mldh lgefr ds csbZekuhiw.kZ vk'k; ls tcju Nhu fy;kA bl izdkj vkius MdSrh dk vijk/k fd;kA ,rn~}kjk vkidk mDr d`R; /kkjk 395 Hkk-n-l- ds rgr n.Muh; vijk/k gS tks fd esjs izlaKku esa gSA vkius mDr fnukad] le; o LFkku ij lgvfHk;qDrx.k ds lkFk ekSds ij ekStwn gksrs gq;s o vkijkf/kd "kM+;U= esa lfEefyr gksrs gq;s lgvfHk;qDr jfodqekj }kjk lk'k; f'koukjk;.k dh duiVh ij xksyh ekjdj mldh gR;k dkfjr dj nhA ,rn~}kjk vkidk Hkh mDr d`R; Hkk-n-l- dh /kkjk 302 lifBr /kkjk 120ch ds rgr n.Muh; vijk/k gS tks fd esjs izlaKku esa gSA vkSj eSa ,rn~}kjk funsZ'k nsrk gwa fd vkidks mDr U;k;ky; }kjk mDr vkjksiks ds fy;s ijhf{kr fd;k tkosAs**
21. Section 34 of IPC defines that 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.
'Common intention' implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may yet develop on the spot as between number of persons with reference to the facts of the case and (24 of 28) [CRLA-76/1989] circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to commission of offence showing pre-arranged plan and prior- concert and it has been held in Krishan Govind Patil Vs. State of M.P., AIR 2004 SC 132 by Hon'ble Supreme Court.
In Amrik Singh v. State of Punjab, 1972 Cri LJ 465 (SC), it has been held that common intention presupposes prior concert.
In the Oxford English Dictionary the word "furtherance" is defined as 'action of helping forward'. Adopting this definition. Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony, if it is a step intentionally taken for the purpose of "effecting that felony.
In Shankarlal Kacharabhai v. State of Gujarat, AIR 1965 SC 1260, the Supreme Court has interpreted the word "furtherance" as 'advancement of promotion.
Common intention was a state of mind of an accused which can be inferred objectively from his conduct displayed in course of commission of crime as also prior and subsequent concert and attendant circumstance.
"Common intention" means prior meeting of mind and pre-arranged plan and prior concert.
22. A charge under Section 34 I.P.C. pre-supposes the sharing of a particular intention and existence of common (25 of 28) [CRLA-76/1989] intention as always to be informed from facts.
In B.N. Srikantiah Vs. State of Mysore AIR 1958 SC 672, it has been held that intention is a question of fact which is to be gathered from the facts of the parties.
Section 34 I.P.C. is only rule of evidence, it basically does not create any offence.
In Bhagwati Prasad Vs. State, 2003 (3)A Criminal R 2692 Allahabad, it has been held that for inferring common intention, it is not necessary that all the accused persons should assault the victim if the evidence was available that offence was committed in furtherance of common intention, the provisions of Section 34 I.P.C. was applicable.
23. Section 34 was applicable even if no injury has been caused by particular accused himself for applying Section 34 in Ch. Pulla Reddy V. State of A.P., AIR 1993 SC 1899, it was not necessary to show some overt act on the part of the accused in Sewa Ram Vs. State of U.P., 2008(1) Crimes 78 (SC).
In Dhanna V. State of M.P., 1996 Crl.L.J. 3516 (SC) it has been held that Section 34 of I.P.C. can be applied even if said section was not specifically mentioned in charge. In Garib Singh Vs. State of Bihar, AIR 1973 SC 460, it has been held that Section 34 would apply and where no charge has been framed if evidence establish it.
24. In Raju Panduranga Mahole Vs. State of Maharashtra 2004 Cri.L.J. 1441 (SC) it has been held that :-
(26 of 28) [CRLA-76/1989] "Section 34 I.P.C. has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section was the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention was seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section was that if two or more persons intentionally do an act jointly, the position in law was just the same as if each of them has done it individually by himself."
In Pintoo @ Kamal Kishore and Anr. And Kalua @ Koshal Kishore Vs. State of Rajasthan, 2009 CriLJ 748, the Hon'ble Supreme Court has held that :-
"To invoke aid of Section 34 of I.P.C. successfully, it must be shown that criminal act complained against was done by one of accused persons in furtherance of common intention of all; if this is shown, then liability for crime may be imposed on any one of persons in same manner as if act were done by him alone - Appellants P and K shared common intention with Appellant S to commit murder - Appellants P and K were rightly held guilty under Section 302/34 of I.P.C. - Appeals dismissed."
25. In Dalbeer Singh Vs. State of U.P., 2004 Cri.L.J 2025, the Hon'ble Supreme Court while interpreting Section 464 of I.P.C. has held:-
Code of Criminal Procedure, 1973 - Section 222 (27 of 28) [CRLA-76/1989] and 464 - Indian Penal Code, 1860-- Sections 302, 304B, 306 and 498A-- Murder/abetment of suicide--Conviction and death penalty awarded by trial court for murder of his wife and two minor daughters--Appellant also convicted and sentenced under Section 498A--High Court acquitting appellant for offence under Section 302, I.P.C. but maintaining his conviction and sentence under Section 498A-- Not convicting appellant under Section 306 on ground that charge thereunder not framed--High Court choosing to rely on later decision of Supreme Court in Sangarabonia Sreenu V. State of A.P., (1997) 5 SCC 348 - And not relying on earlier decision in Lakhjit Singh Vs. State of Punjab, 1994 Supp (1) SCC 173 of equal strength--
Whether decision in Sangarabonia Sreenu (supra) correct? - Held, "no"-- Only Section 222 and not Section 464, Cr.P.C. kept in view-- Possible for appellant or revisional court to convict accused for offence for which no charge framed unless failure of justice to occasion-- On facts, basic ingredients of offence under Section 306, I.P.C. established by prosecution--conviction thereunder not to result in failure of justice-- Hence, appellant convicted under Section 306 and sentenced to imprisonment for nearly six years already undergone.
In view of Section 464, Cr.P.C., it is possible for the appellant or revisional court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would, in fact, occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. Hence, Sangarabonia Sreenu V. State of A.P., (1997) 5 SCC 348 was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 I.P.C., he cannot be convicted for the offence under Section 306 I.P.C."
26. Likewise in Balraje @ Trimbak Vs. State of Maharashtra, 2010 Cri.L.J. 3443, the Hon'ble Supreme Court, (28 of 28) [CRLA-76/1989] while deciding the provisions of Section 464 I.P.C. has held that:-
"It is possible for the appellant or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that failure of justice would in fact occasion. In the present case, the witnesses examined on behalf of the prosecution, whose testimony has been relied upon, clearly deposed that appellant has assaulted the deceased with a knife. In his examination under Section 313 Cr.P.C. a specific question was put to the appellant and he was made aware of the basic ingredients of the offence and the main facts sought to be established against him were explained to him. Thus, he can be convicted under Section 302, I.P.C. for having committed murder."
27. For the reasons adverted and discussed above, we, are of the considered view that Section 120-B, which is coupled with Section 302 in convicting and sentencing the accused persons is modified, altered and replaced by Section 34.
As such, both the appellants-accused persons are convicted under Section 302/34 of I.P.C coupled with Section 392 of I.P.C. Merely section 34 is replaced in lieu of Section 120-B of IP.C. Quantum and dictum of rest of the sentence and impugned judgment shall remain unaltered.
With a result, appeal lacks merit and deserves to be dismissed, hence, the same is dismissed, accordingly.
Record of learned trial Court with copy of this judgment be returned forthwith.
(G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. Babulal/t.kush/sanjay