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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2423  OF 2009

Deepak Verma …. Appellant

Versus

State of Himachal Pradesh …. Respondent

WITH

CRIMINAL APPEAL NO.157 OF 2010

Dheeraj Verma …. Appellant

Versus

State of Himachal Pradesh …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. These appeals have been preferred by Dheeraj Verma (original accused  

no.1) and Deepak Verma (original accused no.2) so as to assail  the order of  

conviction and sentence dated 30.12.2005 rendered in Sessions Trial no.55 of  

2003 by the Sessions Judge, Chamba, as also, the decision rendered by the  

Himachal Pradesh High Court in Criminal Appeal No.27 of 2006, whereby, the  

conviction  and  sentence  awarded  by  the  Sessions  Judge,  Chamba,  on  

30.12.2005, came to be upheld on 2.9.2009.

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2. The prosecution, in order to bring home the case against the appellants-

accused  examined  as  many  as  27  witnesses.   The  prosecution  story,  as  is  

emerged from the statements of the witnesses,  produced by the prosecution,  

reveals that Kamini Verma alias Doli resided with her father Arun Kumar PW2 in  

Mohalla Sultanpur, Chamba, in the State of Himachal Pradesh.  Kamini Verma  

was married to Anmol Verma alias Munna on 6.2.2003.  Thereafter,  she had  

been residing along with her husband at Mukerian in the State of Punjab.  On  

28.7.2003, Kamini Verma came to her father’s house in Chamba from Pathankot.  

She had arrived at 05:30 hrs.  She had been escorted to her father’s house by  

Rakesh  Verma  (her  paternal  uncle,  i.e.,  younger  brother  of  her  father  Arun  

Kumar, PW2), and his wife Veera.

3. About a year before the marriage of Kamini Verma with Anmol Verma,  

Deepak  Verma,  appellant-accused  no.2  had  approached  Arun  Kumar  PW2  

(father of Kamini Verma) with a marriage proposal for Kamini Verma, with his  

younger brother Dheeraj Verma appellant-accused no.1.  Kamini Verma’s father,  

Arun Kumar did not accept the proposal.  Thereafter, Kamini Verma was married  

to Anmol Verma on 6.2.2003. Earlier, Dheeraj Verma and Deepak Verma, were  

tenants in the house of Arun Kumar (PW2, father of Kamini Verma).  The two  

accused were  originally  residents  of  Gurdaspur  in  the  State  of  Punjab.   The  

father of the accused, namely, Shyam Lal, a goldsmith, had moved to Chamba in  

the State of Himachal Pradesh, and had started to reside in the house of Arun  

Kumar PW2.  Shyam Lal has reportedly now gone back to the State of Punjab.  

The affinity between the family of Arun Kumar (PW2, father of Kamini Verma)  

and  Shyam  Lal  (father  of  appellants-accused  Dheeraj  Verma  and  Deepak

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Verma) was also based on the fact, that Deepak Verma, appellant-accused no.2,  

had been giving home tuitions to Kamini  Verma and her brother Deepak Kumar  

(PW1).   

4. Kamini Verma reached Chamba from Pathankot on 28.7.2003 at about  

05:30  hrs.   Dheeraj  Verma,  appellant-accused  no.1  and  Deepak  Verma,  

appellant-accused no.2 came to the house of Arun Kumar (PW2, father of Kamini   

Verma) at Mohalla Sultanpur, Chamba at about 10:30 hrs.  They had come on a  

scooter.   Dheeraj  Verma,  appellant-accused  no.1,  had  in  his  possession,  a  

double  barrel  gun.  According  to  the  case  of  the  prosecution,  after  taking  

breakfast, Kamini Verma went to the kitchen to clean utensils.  Having cleaned  

the utensils she came out into the courtyard.  As she stepped into the courtyard,  

Dheeraj Verma, appellant-accused no.1 fired one shot at her from his double  

barrel gun.  This shot hit her in the abdomen.  Dheeraj Verma, appellant-accused  

no.1, then fired another shot at Kamini Verma.  The second shot hit her on the  

left shoulder.  Sumitri Devi (PW4, grandmother of Kamini Verma) who had also  

come into the courtyard, tried to catch the two accused who were making good  

their escape.  Dheeraj Verma, appellant-accused no.1 hit Sumitri Devi PW4 in  

her abdomen, chest and on her right wrist, with the butt of his double barrel gun.  

Later, when she was medically examined (on 3.8.2003), she was found to have  

suffered multiple bruises, but the nature of injuries was found to be simple.  Even  

though,  Sumitri  Devi  PW4 had  picked  up  a  stone  and  had  thrown  it  at  the  

appellant-accused no.1, but she had missed her mark.  

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5. According  to  the  prosecution  story,  after  two  shots  had  been  fired  by  

Dheeraj Verma, appellant-accused no.1, Deepak Verma, appellant-accused no.2  

handed over  two  cartridges to  Dheeraj  Verma,  appellant-accused no.1.   The  

appellant-accused  no.1  then  reloaded  his  gun  and  shot  at  Rakesh  Kumar  

(maternal uncle of Kamini Verma) who had by then come into the courtyard, and  

was trying to lift Kamini Verma.  The shot fired at Rakesh Kumar (maternal uncle  

of  Kamini  Verma)  hit  him  on  the  left  side  of  the  lower  abdomen.   The  two  

accused then fled away.  At the time of occurrence, Sonia (PW3, wife of Rakesh  

Kumar,  maternal  uncle  of  Kamini  Verma)  on  hearing  the  first  shot  had  also  

rushed to the courtyard. She tried to assist her husband Rakesh Kumar and her  

niece Kamini Verma.   

6. Both Kamini Verma and Rakesh Kumar were taken to the Zonal Hospital,  

Chamba immediately after the occurrence.  Rakesh Kumar was declared dead at  

the said Hospital  at 12:30 hours on the date of the occurrence itself  (i.e.,  on  

28.7.2003).  He was stated to have died due to a gun shot injury causing rupture  

of major vessels and visceral organs leading to hemorrhagic shock and death.

7. The police post, Sultanpur was informed of the occurrence telephonically,  

leading to the recording of Daily Diary No.4 at 10:30 a.m. on 28.7.2003. ASI Jog  

Raj PW26 along with other police personnel, on receipt of aforesaid information,  

proceeded to Zonal Hopital, Chamba.  ASI Jog Raj moved an application to the  

Senior  Medical  Officer,  Zonal  Hospital,  Chamba  for  seeking  medical  opinion  

whether  Kamini  Verma  alias  Doli  was  fit  to  make  a  statement.   In  the  first  

instance Dr. D.P. Dogra PW11 gave a report at 12:20 hrs. (on 28.7.2003) to the  

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effect that Kamini Verma was not fit to make her statement.  The said opinion  

was  tendered  as  her  pulse  rate  and  blood  pressure,  at  that  time,  were  not  

recordable,  and  also  because,  she  had  no  control  over  her  speech.  

Subsequently, at 13:00 hrs. on 28.7.2003 itself, Dr. D.P. Dogra PW11 declared  

her medically fit.  It was thereafter, that the statement of Kamini Verma came to   

be recorded by ASI Jog Raj in the presence of Dr. D.P. Dogra. The statement  

recorded  was  then  read  out  to  Kamini  Verma,  whereupon,  in  token  of  its  

correctness, she affixed her right thumb impression on the same.  Both Dr. D.P.  

Dogra  PW11  and  ASI  Jog  Raj  PW26  recorded  their  endorsements  on  the  

statement of Kamini Verma.  The statement of Kamini Verma was the basis of  

registering FIR No.182 of 2003 at Police Station Sadar, Chamba on 28.7.2003.  

Kamini  Verma repeated  the  same version  of  the  incident  to  her  father  Arun  

Kumar PW2 on her way to Amritsar (from Chamba).

8. Kamini Verma, who was originally taken to Zonal Hospital, Chamba, was  

referred to Zonal Hospital, Dharamshala.  However, on her discharge from Zonal  

Hospital, Chamba, she was taken for treatment to Ram Saran Dass, Kishori Lal  

Charitable Hospital, Amritsar (Kakkar Hospital, Amritsar) in the State of Punjab.  

Kamini Verma died at Kakkar Hospital, Amritsar on 1.8.2003 at 04:00 hrs.  In the  

post-mortem report of Kamini Verma (Exh.PW13/C) it was opined, that she had  

died due to gun short injuries leading to injuries to her abdominal viscera and  

disseminated intravascular bleeding leading to shock and death.   

9. The pellets, recovered from the wounds of Kamini Verma and from the  

dead  body of  Rakesh Kumar at Zonal Hospital, Chamba, were handed over to

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the police.   Inspector  Khub Ram PW27, went  to  the place of  occurrence for  

inquest.  From the spot, i.e., courtyard of the house of Arun Kumar (PW2, father  

of Kamini Verma) he collected blood samples from the floor, two plastic caps, 35  

pellets lying on the floor, besides 3 pellets embedded in a door of the house.  

Two empty cartridges were also recovered from outside the gate of house of  

Arun Kumar PW2.

10. On the date of occurrence itself, i.e., on 28.7.2003, the scooter, on which  

the appellant-accused nos.1 and 2 had made good their escape was stopped at  

Bhatulun Morh at a police “nakka” while they were proceeding towards Khajjiar  

from Chamba.  Dheeraj Verma and Deepak Verma, appellant-accused nos.1 and  

2 were identified.  A double barrel gun, which was in their possession, was found  

with one live cartridge and one spent cartridge.  The gun, the live as well  as  

spent  cartridges,  and  the  scooter  on  which  they were  apprehended,  bearing  

registration no.PB-58-A-0285 were taken into possession by the police.  Both the  

accused  were  also  taken  into  custody.   On  the  personal  search of  both  the  

accused, four live cartridges were recovered from the pocket of Dheeraj Verma,  

appellant-accused no.1. Based on a disclosure statement made on 31.7.2003 by  

Dheeraj  Verma  appellant-accused  no.1,  13  more  live  cartridges  beside  four  

empty cartridges were recovered from a cupboard in his bedroom.  The licence  

of the double barrel gun was also recovered from their residence.

11. The double barrel gun recovered from the appellant-accused nos.1 and 2  

was  sent  to  the  Forensic  Science  Laboratory,  Bharari,  Shimla,  Himachal  

Pradesh.   In  his  report,  the  Assistant  Director  opined;  firstly,  that  the  double  

barrel gun recovered from the accused was capable of firing; secondly, that 3

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empty cartridges recovered from the place of occurrence may have been fired  

from the recovered gun; and thirdly, that the pellets recovered may have been  

fired from the empty cartridges recovered from the spot.

12. On the completion of investigation, the prosecution presented a challan in  

the court of Chief Judicial Magistrate, against both the accused, under sections  

302 and 323 read with section 34 of the Indian Penal Code, besides section 27 of  

the Indian Arms Act.  The Chief Judicial Magistrate committed the case for trial to  

the  Court  of  Sessions  on  22.10.2003.   On  12.1.2004  the  Sessions  Judge,  

Chamba, framed the charges, as were proposed by the prosecution.  In order to   

bring home the charges, the prosecution examined as many as 27 witnesses.  

The cumulative effect of the statement of witnesses examined by the prosecution  

has been narrated in the foregoing paragraphs.  After recording the prosecution  

evidence, the statements of Dheeraj Verma, appellant-accused no.1 and Deepak  

Verma, appellant-accused no.2 were recorded under Section 313 of the Criminal  

Procedure Code.  The accused, besides denying the correctness (or knowledge)  

of the factual position, with which they were confronted, alleged that a false case  

has  been  registered  against  them due  to  business  rivalry.   It  is  pertinent  to  

mention, that the father of the deceased Kamini Verma, i.e., Arun Kumar PW2,  

as also, the father of the appellant-accused Dheeraj Verma and Deepak Verma,  

namely, Shyam Lal, were admittedly goldsmiths, and were engaged in the said  

business.

13. Sessions  Trial  No.55  of  2003  came  to  be  disposed  of  on  30.12.2005  

whereby the Sessions Judge, Chamba convicted the accused Dheeraj Verma  

and Deepak Verma for offences punishable under section 302 and 323 read with

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section 34 of the Indian Penal Code, as also, under section 27 of the Arms Act.  

On  the  date  of  their  conviction,  i.e.,  on  30.12.2005  itself,  after  affording  an  

opportunity  of  hearing,  the  appellants-accused  nos.1  and  2  were  sentenced  

under  Section  302  read  with  Section  34  of  the  Indian  Penal  Code,  to  

imprisonment for life and to pay fine of Rs.25,000/- each (in default of payment of   

fine,  they were  to  undergo  further  simple  imprisonment  for  two  years).   The  

appellants-accused nos.1 and 2 Dheeraj Verma and Deepak Verma were also  

sentenced under Section 323 read with Section 34 of the Indian Penal Code, to  

undergo simple imprisonment for a period of six months and to pay a fine of  

Rs.1000/-  each (in  case of  default  of  payment  of  fine,  they were  to  undergo  

further  simple  imprisonment  for  one month).  The appellants-accused Dheeraj  

Verma  and  Deepak  Verma  were  sentenced  to  undergo  two  years  rigorous  

imprisonment, for the offence punishable under Section 27 of the Arms Act.  The  

Sessions  Judge,  Chamba also  ordered,  that  all  the  substantive  punishments  

were to run concurrently.   

14. Dissatisfied with the order rendered in Sessions Trial No.55 of 2003 by the  

Sessions Judge, Chamba on 30.12.2005, the appellants-accused nos.1 and 2  

Dheeraj  Verma and Deepak Verma preferred Criminal  Appeal  No.27 of  2006  

before the High Court of Himachal Pradesh.  Criminal Appeal No.27 of 2006 was,   

however, dismissed by the High Court on 2.9.2009, on merits, as well as, on the  

quantum of sentence imposed on the appellants-accused.

15. Dissatisfied  with  the  order  dated  30.12.2005  passed  by  the  Sessions  

Judge, Chamba in Sessions Trial  No.55 of 2003, as well  as,  the order dated  

2.9.2009 passed by the  High Court  of  Himachal  Pradesh in  Criminal  Appeal

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No.27 of 2006, the appellants-accused nos.1 and 2 Dheeraj Verma and Deepak  

Verma have approached this Court by filing the instant appeals.

16. The first and foremost contention advanced at the hands of the learned  

counsel for the appellants was, that the case set up by the prosecution was false  

and fabricated.  It was submitted, that the facts brought forth by the prosecution  

clearly lead to the inference, that there was no involvement whatsoever of the  

two accused Dheeraj Verma and Deepak Varma.  In so far as the instant aspect  

of the matter is concerned, it was the contention of the learned counsel for the  

appellants that the statements of Deepak Kumar PW1, Arun Kumar PW2, Sonia  

PW3 and Sumitri Devi PW4 reveal, that the two accused were well-known to the  

members of the family of  the deceased Kamini  Verma.  In this behalf  it  was  

sought to be asserted, that according to the prosecution version, the two accused  

Dheeraj Verma and Deepak Verma had come to reside in the house of Arun  

Kumar  PW2 along with  their  father  Shyam Lal,  as  tenants.  According  to  the  

learned  counsel,  it  is  also  the  case  of  the  prosecution,  that  Deepak  Verma,  

appellant-accused no.2 had been giving home tuitions to the deceased Kamini  

Verma and her brother Deepak Kumar PW1.  Inspite of  being in an effective  

position to identify both the accused on account of their long past relationship, it  

was submitted, that the names of the two accused Dheeraj Verma and Deepak  

Verma  came  to  be  disclosed,  for  the  first  time  at  13:00  hrs.,  through  the  

statement of the deceased Kamini Verma, which was recorded by the ASI Jog  

Raj PW26.  Stated in other words, it is the contention of the learned counsel for   

the appellants, that even though the two accused were well-known to the entire  

family  of  the  deceased  Kamini  Verma,  yet  all  the  family  members  of  the

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deceased Kamini Vemra remained tight-lipped till the eventual disclosure of the  

names  of  the  two  accused  by  Kamini  Verma  herself,  at  the  Zonal  Hospital,  

Chamba.  It is, therefore, the contention of the learned counsel for the appellant,   

that the statements of all the eye-witnesses (Deepak Kumar PW1, Sonia PW3  

and Sumitri Devi PW4) who were close family members of the deceased Kamini  

Verma and Rakesh Kumar, and had known the two accused for a long time,  

should not be relied upon.  It  is sought to be suggested, that all  these close  

relations of the deceased Kamini Verma must be deemed to have been tutored,  

to  make false statements against  the appellants Dheeraj  Verma and Deepak  

Verma at the instance of the investigating officers. It is submitted that the crime in  

question came to be committed at 10:30 hrs., on 28.7.2003, and yet none of the   

aforesaid eye-witnesses disclosed the names of the offenders.  It is sought to be  

suggested, that the names would have been disclosed only if they had actually  

witnessed the occurrence. It is therefore, submitted that none of the aforesaid  

eye  witnesses  actually  witnessed  the  occurrence.  It  is,  accordingly,  the  

submission of the learned counsel for the appellant, that the prosecution version  

deserves to be rejected outright, and the appellants-accused Dheeraj Verma and  

Deepak Verma deserve to be acquitted.

17. We have given our thoughtful consideration to the first and the foremost  

contention advanced at the hands of the learned counsel for the appellants, as  

has been noticed in the foregoing paragraph.  The facts, as they unfold from the  

prosecution  story  reveal,  that  the  occurrence  took  place  at  10:30  hrs.  on  

28.7.2003.   Both Kamini  Verma and Rakesh Kumar were  taken to  the Zonal   

Hospital,  Chamba  immediately  after  the  occurrence.   Rakesh  Kumar  was

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declared dead at 12:30 hrs. on the date of occurrence, i.e., on 28.7.2003 itself.  

The condition of Kamini Verma was critical at that juncture.  This is evident from  

the fact that Dr. D.P. Dogra PW11 gave a report at 12:20 hrs., (on 28.7.2003) to  

the effect,  that Kamini Verma was not fit to record her statement.  The attending  

doctor had recorded, that her pulse rate and blood pressure were not recordable.   

In the peculiar facts, as have been noticed hereinabove, it is evident that the first  

endeavour of all close family members would have been, to have the two injured  

Kamini Verma and Rakesh Kumar treated at the Zonal Hospital, Chamba. None  

of the close family members could have been expected to proceed to the police  

station to lodge a report when both the injured were critical.  Full attention for the  

welfare  of  the  two  close  family  members  would  have  been  the  expected  

behaviour of all family members.  The action to be taken against the assailants,  

would have been a matter of  secondary concern. The contention of their  not  

having made any statements at that juncture to the police, cannot therefore, be  

considered unnatural.  Kamini Verma was declared medically fit at 13:00 hrs., on  

28.7.2003 by Dr. D.P. Dogra PW11.  She specifically identified the two accused  

Dheeraj Verma and Deepak Verma as the perpetrators of the occurrence.  There  

is no reason whatsoever to doubt the dying declaration made by Kamini Verma.  

Besides, the dying declaration of Kamini Verma, the prosecution endeavoured to  

establish the guilt  of  the accused, by producing three eye-witnesses.  Deepak  

Kumar PW1, (aged 14 years at the time of occurrence), who was in the courtyard  

itself at the time of occurrence was the younger brother of the deceased Kamini  

Verma. In his deposition, he reiterated the factual position recorded by Kamini  

Verma in  her  dying  declaration.  The grand-mother  of  the  deceased,  namely,  

Sumitri  Devi  PW4,  aged  61  years,  is  a  stamped  witness.   At  the  time  of

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occurrence  she  was  hit  by  Dheeraj  Verma,  appellant-accused  no.1,  in  her  

abdomen, chest and on her right wrist with the butt of his double barrel gun. She  

also identified the accused in her statement. On medical examination she was  

found to have suffered multiple bruises, which could have been caused by the  

butt  of  a  double  barrel  gun.  Additionally,  Sonia  PW3 is  also  an  eye-witness   

whose  statement  was  recorded.   She was  the wife  of  the  deceased Rakesh  

Kumar.  She had come into the courtyard on hearing the first shot fired at Kamini   

Verma.  The dying declaration of Kamini  Verma was supplemented by Sonia  

PW3 as  well.  The  aforesaid  three  witnesses,  a  young  boy,  the  wife  of  the  

deceased and an old grandmother are natural witness, whose presence at the  

place of occurrence, does not cast any shadow of doubt. The prosecution was  

able to establish the motive of the appellants-accused in having committed the  

crime.  In so far as the instant aspect of the matter is concerned, the alleged   

motive of declining the marriage proposal of the appellant-accused no.1, at the  

hands of his elder brother, appellant-accused no.2 Deepak Verma was reiterated  

by Deepak Kumar PW1, Arun Kumar PW2, Sonia PW3 as also Sumitri  Devi   

PW4, as well as, by Kamini Verma in her statement recorded by ASI Jog Raj   

PW26. It is only on account of the rejection of the aforesaid marriage proposal  

that Dheeraj Verma and Deepak Verma, the appellants-accused nos.1 and 2, as  

an act of retaliation and vengeance, jointly committed the offence in question.  It   

is  also  necessary  to  notice,  that  no  reason  whatsoever  emerges  from  the  

evidence produced before the Trial Court why the family of the deceased Kamini  

Verma  and/or  Rakesh  Kumar  would  falsely  implicate  the  accused-appellants  

nos.1 and 2. The cumulative effect of all  the factors mentioned above, clearly  

negate the suggestions/ submissions advanced by the learned counsel for the

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appellants as a part of his first contention.  It is, therefore, apparent that there is   

no merit  in the first  contention advanced at the hands of the counsel  for  the  

appellants.

18. The second contention advanced at the hands of the learned counsel for  

the appellants was limited to the appellant-accused no.2 Deepak Verma.  In so  

far as the second submission is concerned, it was sought to be asserted that no  

role whatsoever has been attributed to appellant-accused no.2 Deepak Verma.  It   

was pointed out, that as per the prosecution witnesses, the double barrel gun  

which came to be fired at Kamini Verma and Rakesh Kumar, had remained in  

possession  of  Dheeraj  Verma,  appellant-accused  no.1  throughout  the  

occurrence. All the shots were fired by Dheeraj Verma, appellant-accused no.1. It   

was  pointed  out,  that  as  per  the  prosecution  story,  it  was  Dheeraj  Verma,  

appellant-accused no.1 alone, who had allegedly fired shots, in the first instance  

at Kamini Verma, and thereafter, at Rakesh Kumar. It was submitted, that none  

of the shots was fired by Deepak Verma appellant-accused no.2. It is submitted,  

that even if the prosecution story is examined dispassionately, it would emerge  

that Deepak Verma, accused-appellant no.2 was a mere by-stander, and had no  

role whatsoever in the commission of the crime in question.  In order to buttress  

the aforesaid contention, learned counsel for the appellants, in the first instance,  

placed reliance on  State of Uttar Pradesh vs. Sahrunnisa & Anr. (2009) 15  

SCC 452, wherefrom he placed emphatic reliance on the following observations:

“18. There can be no dispute that these two respondents were  present  and  indeed  their  mere  presence  by  itself  cannot  be  of  criminal nature in the sense that by their mere presence a common  intention cannot be attributed to them.  Indeed, they have not done  anything.  No overt act is attributed to them though it was tried to be

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claimed by one of the witnesses that when the police party reached  there they were standing on one leg.  This also appears to be a tall  claim without any basis and the High Court has rightly not believed  this story which was tried to be introduced.”

Additionally, reliance was placed on Aizaz & Others vs. State of Uttar Pradesh  

(2008) 12 SCC 198.  In so far as the instant judgment is concerned, our attention  

was invited to the following observations:

“11. …It is a well-recognised canon of criminal jurisprudence that  the courts cannot distinguish between co-conspirators, nor can they  inquire, even if it were possible, as to the part taken by each in the  crime.   Where parties go with  a common purpose to  execute  a  common object, each and every person becomes responsible for  the act  of  each and every other in execution and furtherance of  their common purpose; as the purpose is common, so must be the  responsibility.  All are guilty of the principal offence, not of abetment  only.  In a combination of this kind a mortal stroke, though given by  one of the parties, is deemed in the eye of the law to have been  given by every individual  present  and abetting.  But  a  party not  cognizant of the intention of his companion to commit murder is not  liable, though he has joined his companion to do an unlawful act.  The leading feature of this section is the element of participation in  action.  The essence of liability under this section is the existence  of a common intention animating the offenders and the participation  in  a  criminal  act  in  furtherance  of  the  common  intention.   The  essence  is  simultaneous  consensus  of  the  minds  of  persons  participating in the criminal action to bring about a particular result.  (See Ramaswami Ayyangar vs. State of T.N. (1976) 3 SCC 779).  The participation need not in all cases be by physical presence.  In  offences  involving  physical  violence,  normally  presence  at  the  scene of offence may be necessary,  but such is not the case in  respect of other offences when the offence consists of diverse acts  which may be done at different times and places.  The physical  presence  at  the  scene  of  offence  of  the  offender  sought  to  be  rendered liable under this section is not one of the conditions of its  applicability in every case. Before a man can be held liable for acts  done by another, under the provisions of this section, it  must be  established that: (i) there was common intention in the sense of a  prearranged plan between the two, and (ii) the person sought to be  so  held  liable  had  participated  in  some  manner  in  the  act  constituting the offence.  Unless common intention and participation  are both present, this section cannot apply.

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12. ‘Common intention’ implies prearranged plan and acting in  concert  pursuant  to  the prearranged plan.   Under  this  section a  preconcert in the sense of a distinct previous plan is not necessary  to be proved.  The common intention to bring about a particular  result  may  well  develop  on  the  spot  as  between  a  number  of  persons, with reference to the facts of the case and circumstances  of  the situation.   Though common intention may develop on the  spot,  it  must,  however,  be  anterior  in  point  of  time  to  the  commission  of  offence  showing  a  prearranged  plan  and  prior  concert.  (See Krishna Govind Patil v. State of Maharashtra – AIR   1963 SC 1413).  In Amrik Singh v. State of Punjab [(1972) 4 SCC   (N) 42]  it has been held that common intention presupposes prior  concert.   Care  must  be  taken  not  to  confuse  same  or  similar  intention with  common intention;  the partition which divides their  bonds is  often very thin,  nevertheless the distinction is  real  and  substantial,  and if  overlooked will  result  in miscarriage of justice.  To constitute  common intention,  it  is  necessary that  intention of  each one of  them be known to  the rest  of  them and shared by  them.  Undoubtedly, it is a difficult thing to prove even the intention  of an individual and, therefore, it is all the more difficult to show the  common intention of a group of persons.  But however difficult may  be  the  task,  the  prosecution  must  lead  evidence  of  facts,  circumstances  and  conduct  of  the  accused  from  which  their  common intention can be safely gathered.  In Maqsoodan v. State   of U.P. [(1983) 1 SCC 218] it was observed that the prosecution  must  lead  evidence  from  which  the  common  intention  of  the  accused can be safely gathered.  In most cases it has to be inferred  from the act, conduct or other relevant circumstances of the case in  hand.   The  totality  of  the  circumstances  must  be  taken  into  consideration in arriving at a conclusion whether the accused had a  common  intention  to  commit  an  offence  for  which  they  can  be  convicted.  The facts and circumstances of cases vary and each  case  has  to  be  decided  keeping  in  view  the  facts  involved.  Whether  an act  is  in  furtherance of  the common intention is  an  incident of fact and not of law.  In Bhaba Nanda Sarma v. State of   Assam [(1977) 4 SCC 396] it  was observed that the prosecution  must prove facts to justify an inference that all participants of the  acts  had shared a common intention  to  commit  the criminal  act  which  was finally committed by one or  more of  the participants.  Mere presence of a person at the time of commission of an offence  by the confederates is not, in itself sufficient to bring his case within  the purview of Section 34, unless community of designs is proved  against him (See Malkhan Singh v.  State of U.P. (1975) 3 SCC   311).   In the Oxford English Dictionary,  the word ‘furtherance’  is  defined  as  ‘action  of  helping  forward’.   Adopting  this  definition,  Rusell  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’.

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(Russel on Crime, 12th Edn., Vol.I, pp. 487 and 488).  In Shankarlal   Kacharabhai v. State of Gujarat [AIR 1965 SC 260] this Court has  interpreted the word ‘furtherance’ as ‘advancement or promotion.”

Based on the observations recorded in the judgments relied upon it was  

submitted,  that the appellant-accused no.2 Deepak Verma had no role in the  

crime,  except  that  he was present  at  the place of  occurrence.  It  is  therefore  

submitted, that his mere presence along with Dheeraj Verma accused-appellant  

no.1, cannot be a valid basis for his conviction.

19. It is not possible for us to accept the contention advanced at the hands of  

the learned counsel for the appellant to the effect,  that the appellant-accused  

no.2 Deepak Verma was not an active participant in the crime in question. The  

evidence produced by the prosecution clearly establishes that the two accused-

appellants nos.1 and 2 Dheeraj  Verma and Deepak Verma had come to the  

house of Arun Kumar PW2 to commit the crime in question on a scooter. It is  

also apparent that at one juncture only two cartridges can be loaded in a double   

barrel  gun. With the cartridges loaded in the gun, the appellant-accused no.1  

Dheeraj Verma had fired the first two shots at Kamini Verma.  Thereafter, there  

were no live cartridges in the gun. Sumitri Devi, while appearing as PW4, pointed  

out, that after the appellant-accused no.1 Dheeraj Verma had fired two shots at  

Kamini  Verma,  the  appellant-accused  no.2  Deepak  Verma  provided  two  live  

cartridges to the appellant-accused no.1 Dheeraj Verma.  Dheeraj Verma then  

reloaded his double barrel gun with the two live cartridges furnished by appellant-

accused no.2 Deepak Verma, and fired one further shot at the deceased Rakesh  

Kumar.  After the commission of the crime, Dheeraj Verma and Deepak Verma,

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jointly made good their escape on a scooter bearing registration no. PB-58-A-

0285. When the two accused were apprehended at Bataluan Morh at a police  

“naka”  the  appellant-accused  no.2  Deepak  Verma  was  driving  the  scooter,  

whereas, appellant-accused no.1 Dheeraj Verma was pillion riding with him.  It,   

accordingly  emerges,  that  after  having  committed  the  crime,  the  appellant-

accused no.2 Deepak Verma, also helped his brother appellant-accused no.1  

Dheeraj Verma to make good his escape from the place of occurrence.  It  is,   

therefore, not possible for us to conclude that appellant-accused no.2 Deepak  

Verma was merely a by-stander, who was incidentally present at the place of   

occurrence.  In our considered view both Dheeraj Verma and Deepak Verma  

jointly  planned and committed  the  crime.   The judgments relied upon by the  

learned counsel for appellants are inapplicable to the facts and circumstances of  

this  case.   Various  eye-witnesses  had  identified  the  two  accused  who  had  

committed  the  offence.   The  dying  declaration  of  Kamini  Verma  and  the  

statements  of  her  relations,  who  had  appeared  as  prosecution  witness,  duly  

establishes the commission of the crime, as well as, the common motive for the  

two accused to had joined hands in committing the crime.  The handing over of  

two live cartridges by the appellant-accused no.2 Deepak Verma to his brother  

Dheeraj Verma, after he had fired two shots from the double barrel  gun with   

which  the  crime  in  question  was  committed,  completely  demolishes  the  

contention advanced at the hands of the learned counsel for the appellants, in so  

far as the participation of the appellant-accused no.2 Deepak Verma in the crime  

is concerned.  For the reasons recorded herein above, we find no merit even in  

the second contention advanced at the hands of the counsel for the appellants.

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20. The third contention advanced at the hands of the learned counsel for the  

appellants was, that there was no motive whatsoever for the appellant-accused  

no.2  Deepak  Verma  to  have  committed  the  offence  in  question.   It  is  the  

submission of the learned counsel for the appellants, that insult on account of  

non acceptance of the marriage proposal already referred to above, may have  

been felt by appellant-accused no.1 Dheeraj Verma.  There was no question of   

the appellant-accused no.2 Deepak Verma to have felt any insult, or to have any  

motive to commit the offence in question.  On account of lack of motive to commit  

the crime on the part of appellant-accused no.2 Deepak Verma, learned counsel  

emphatically submits, that the appellant-accused no.2 Deepak Verma deserves  

acquittal.  In order to supplement his instant contention, learned counsel placed  

reliance on a judgment rendered by this Court  in  State of Uttar  Pradesh v.  

Rajvir, (2007) 15 SCC 545, wherein the State had approached this Court against  

the acquittal of the respondent.  The High Court, while hearing the appeal against  

the respondent had re-appreciated the evidence by re-evaluating the statement  

of witnesses.  While two of the accused were found to be guilty of murder, and  

accordingly, the sentence passed by the Trial Court against them was upheld;  

the High Court was doubtful of the participation of the respondent in the murder  

of the deceased, according to learned counsel, solely on the ground that there  

was  no  motive  for  the  respondent  to  commit  the  murder  of  the  deceased.  

Adopting a cautious approach, the High Court had acquitted the respondent by  

giving him the benefit of doubt.  This Court found merit in the determination of the  

High Court, and accordingly, upheld the decision of the High Court by recording  

the following observations:

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“8. We have carefully considered the submissions made by the  learned counsel for the parties.  It is the case of the prosecution  that  the  other  two  accused,  namely,  Chander  and  Chhotey  had  motive against the deceased and the respondent  had no motive  whatsoever  against  the  deceased;  all  the  three  accused  were  friendly among them.  It is true that PWs 1 to 3 have supported the  prosecution case that all the three accused went to the house of the  deceased on the date of the incident and the respondent called the  deceased to attend a patient immediately.  PWs 1 to 3 also stated  that all the three accused assaulted the deceased but the evidence  of PWs 1 to 3 is specific and consistent as to the assault by the  accused Chander on the deceased with a knife.  As to the assault  by the respondent, the statements of the witnesses are general and  vague.  No specific overt act is attributed to the respondent.  It may  also be mentioned here that there was no recovery of knife from the  respondent. There was recovery of bloodstained clothes from the  accused Chander.  It is possible that on the accused Chander and  Chhotey asking the respondent to accompany them to the house of  the deceased to show a patient or the respondent himself might  have  taken a  patient  also  for  examination  by  the  doctor.   Mere  presence of  the  respondent  on  the  spot  when  the  incident  took  place was not sufficient to hold that the respondent had shared the  common intention  to  kill  the  deceased;  particularly  so  when  the  respondent had no motive whatsoever.   PW1, the brother of the  deceased himself has stated that the respondent had no ill-will or  motive against the deceased.  It is under these circumstances, the  motive aspect assumed importance.  There is no dispute as to the  legal position that in the absence of motive; or the alleged motive  having not been established; an accused cannot be convicted if the  prosecution is (sic not) successful in establishing the crime said to  have been committed by an accused by other evidence.  At any  rate, a doubt definitely arose in the case in hand as to what was the  reason or motive for the respondent to commit the murder of the  deceased.  In State of U.P. v. Hari Prasad [(1974) 3 SCC 673] this  Court dealing with the aspect of motive has stated thus: (SCC pp.  674-75, para 2):

“This is not to say that even if the witnesses are truthful, the  prosecution must fail  for the reason that the motive of the  crime is difficult  to find.  For the matter of fact, it is never  incumbent on the prosecution to  prove the motive for  the  crime.  And often times, a motive is indicated to heighten the  probability  that  the  offence was  committed  by the  person  who was impelled by the motive.  But, if the crime is alleged  to have been committed for a particular motive, it is relevant  to inquire whether  the pattern of the crime fits in with  the  alleged motive.”

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The  present  case  is  not  the  one  where  the  prosecution  has  successfully proved the guilt of the respondent beyond reasonable  doubt  by  other  evidence  on  record  to  say  motive  aspect  was  immaterial.”

Based on the aforesaid factual and legal position, it is submitted, that the  

appellant-accused no. 2 Deepak Verma deserved acquittal.

21. We have examined the third submission canvassed at the hands of the  

learned counsel for the appellants, based on the plea of motive.  While dealing  

with the second contention, advanced at the hands of the learned counsel for the  

appellants,  we have already concluded hereinabove,  that  there was sufficient  

motive even for the appellant-accused no.2 Deepak Verma to commit the crime  

in question, in conjunction with his younger brother Dheeraj Verma, appellant-

accused no.1.  Be that as it may, it would be relevant to indicate, keeping in mind  

the observations recorded by this Court as have been brought to our notice by  

the learned counsel for the appellants (which we have extracted hereinabove),   

that proof of motive is not a sine qua non before a person can be held guilty of   

the commission of a crime. Motive being a matter of the mind, is more often than  

not,  difficult  to establish through evidence. In our view, the instant contention  

advanced by the learned counsel for the appellant is misconceived in the facts  

and  circumstances  of  the  case.  In  the  present  case,  there  is  extensive  oral  

evidence in the nature of the statements of three eye-witnesses out of which one

21

is a stamped witness, that appellant-accused no.2 Deepak Verma was an active  

participant in the crime in question. There is also the dying declaration of Kamini   

Verma implicating both the accused.  In the case relied upon by the learned  

counsel  for  the  appellant,  the  oral  evidence  produced  by  the  prosecution  to  

implicate  the  respondent  with  the  commission  of  the  crime,  was  not  clear.  

Accordingly,  in the absence of  the prosecution having been able to  establish  

even the motive, the High Court (as well as, this Court) granted the respondent  

the benefit  of  doubt.   That  is  not  so,  in so far  as the present  controversy is  

concerned.   The  oral  evidence  against  the  appellant-accused  no.2  Deepak  

Verma is  clear  and unambiguous.  Besides,  motive  of  appellant-accused no.2  

Deepak  Verma  is  also  fully  established.  We are  therefore  satisfied,  that  the  

judgment relied upon by the learned counsel for the appellant has no relevance  

to the present case.  We, therefore, find no merit even in the third contention  

advanced at the hands of the learned counsel for the appellants.

22. The last contention advanced at the hands of the learned counsel for the  

appellant was,  that the dying declaration of Kamini Verma which became the  

basis of registering the First Information Report itself, was forged and fabricated.  

Learned  counsel  for  the  appellants,  vehemently  contended  that  the  very  

foundation  of  the  prosecution  story  itself  being  shrouded  in  suspicious  

circumstances,  must  lead  to  the  inevitable  conclusion,  that  the  appellants-

accused have been falsely implicated in the crime in question.  In so far as the  

instant aspect of the matter is concerned, it was the vehement contention of the  

learned counsel for the appellants, that Kamini Verma was declared medically

22

unfit to make a statement by Dr. D.P. Dogra PW11 at 12:20 hrs., on 28.7.2003.  

Pointing out to Exhibit PW11/B, it was the submission of the learned counsel for  

the appellants, that the medical report, showing that Kamini Verma was not fit to  

make a statement, had been made on the ground that her pulse rate and blood  

pressure were not recordable.  According to the learned counsel, within just 40  

minutes, the same Dr. D.P. Dogra PW11 gave a report at 13:00 hrs., that Kamini  

Verma was fit to record her statement.  Learned counsel for the appellants, also  

invited the court’s attention to Exhibit PW11/C, PW23/A and PW26/A so as to  

point out a number of discrepancies. It was submitted, that there are a number of  

cuttings/overwritings, of the time at which the endorsements on dying declaration  

of Kamini Verma were recorded.  It is submitted, that the time has been altered  

from 12:20 p.m. to 1:00 p.m.  This, according to the learned counsel was done, to  

match with the time given by Dr. D.P. Dogra PW11.  Pointing to the endorsement  

of Dr. D.P. Dogra, it was submitted that Dr. D.P. Dogra had endorsed the dying  

declaration at 13:00 hrs. It  was pointed out, that the time of the endorsement  

made by ASI Jog Raj PW26 (under the dying declaration of Kamini Verma) was  

recorded at 1:30 p.m., which was subsequently altered to 1:00 p.m. to match with  

the  time  recorded  in  the  endorsement  made  by  Dr.  D.P.  Dogra  PW11.  

Additonally, it was the contention of the learned counsel for the appellants, that   

the  language of  the  dying  declaration  itself  shows,  that  the same was  not  a  

voluntary statement made by Kamini Verma, but actually the handiwork of ASI  

Jog Raj PW26, who had recorded the aforesaid statement.  In this regard learned  

counsel for the appellants pointed out, that various words and observations were  

used  in  the  dying  declaration,  which  are  in  use  of  police  personnel  (and/or  

advocates), but not in the use of common persons.  It is, therefore, sought to be

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submitted  that  the  dying  declaration  of  Kamini  Verma,  allegedly  recorded  at   

13:00 hrs., on 28.7.2003 at Zonal Hospital, Chamba not being her own voluntary  

statement, was liable to be discarded from the prosecution version.  In case the  

same is ignored, the entire prosecution story, according to the learned counsel  

for the appellants, would crumble like a house of cards.

23. We have considered the last submission advanced at the hands of the  

learned counsel for the appellants.  There can be no doubt that there are certain  

discrepancies in the time recorded in the dying declaration.  Additionally, there  

can also be no doubt that certain words which are not in common use have found  

place in the dying declaration made by Kamini Verma.  Despite the aforesaid, we  

find no merit in the submission advanced at the hands of the learned counsel for  

the appellant. It is not possible for us to accept, that Kamini Verma was not fit to  

make her statement when she actually recorded the same in the presence of ASI  

Jog Raj PW26 and Dr.D.P. Dogra PW11.  The very medical report, relied upon  

by the learned counsel for the appellants, which depicted that the pulse rate and  

blood pressure of Kamini Verma was not recordable, also reveals, that on having  

been given treatment her blood pressure improved to 140/70 and her pulse rate  

improved to 120 per minute.  This aspect  of  the medical  report  is not subject   

matter of challenge. The fact that the incident occurred on 28.7.2003 and Kamini  

Verma eventually died on 1.8.2003, i.e., 4 days after the recording of the dying  

declaration also shows that she could certainly have been fit to make her dying  

declaration  on  28.7.2003.  Her  fitness  was  actually  recorded  on  the  dying  

declaration by Dr. D.P. Dogra PW11. A number of prosecution witnesses reveal

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that  she was conscious and was able to  speak.   Kamini  Verma after  having  

recorded  her  statement  before  ASI  Jog  Raj  PW26,  also  repeated  the  same  

version  of  the  incident  (as  she  had  narrated  while  recording  her  dying  

declaration) to her father Arun Kumar PW2, when she was being shifted from  

Chamba to Amritsar for  medical  treatment.   Moreover,  Dr.  D.P. Dogra PW11  

appeared as a prosecution witness, and affirmed the veracity of her being in a fit  

condition to make the statement.  There is no reason whatsoever to doubt the  

statement  of  Dr.  D.P.  Dogra  PW11.   The  question  of  doubting  the  dying  

declaration made by Kamini Verma could have arisen if there had been other  

cogent  evidence  to  establish  any  material  discrepancy  therein.   As  already  

noticed hereinabove, three eye witnesses, namely, Deepak Kumar PW1, Sonia  

PW3 and Sumitri Devi PW4 have supported the version of the factual position  

depicted in the statement of Kamini Verma.  It is, therefore, not possible for us to   

accept, that the statement of Kamini Verma was either false or fabricated, or that,   

the statement was manipulated at the hands of the prosecution to establish the  

guilt of the appellants-accused nos.1 and 2 Dheeraj Verma and Deepak Verma,  

or  that  she was  not  medically  fit  to  make a statement.  The discrepancies in  

recording time, as well  as,  the overwriting pointed out are too trivial  to brush  

aside  the  overwhelming  oral  evidence  produced  by  the  prosecution,  details  

whereof have been repeatedly referred to by us, while dealing with the various  

submissions advanced at the hands of the learned counsel for the appellants.  

We, therefore, find no merit even in the last contention advanced at the hands of  

the counsel for the appellants.

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24. In view of the above we hereby affirm the order passed by the Trial Court  

dated 30.12.2005 (in Sessions Trial No.55 of 2003) and also, the order passed  

by the High Court dated 2.9.2009 (in Criminal Appeal No.27 of 2006). Both the  

appeals  preferred  by  appellants-accused  nos.1  and  2,  Dheeraj  Verma  and  

Deepak Verma are, accordingly, dismissed.

…………………………….J. (R.M. Lodha)

…………………………….J. (Jagdish Singh Khehar)

New Delhi October 11, 2011