REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 503 OF 2008

MAHESH & ANR.                                     ….. Appellant (s)

VERSUS

STATE OF MADHYA PRADESH                           ….. Respondent(s)

O R D E R  

1. This appeal is directed against the judgment and order dated  

16.11.2007  passed  by  the  Madhya  Pradesh  High  Court,  

Jabalpur Bench at Gwalior in Criminal Appeal No. 388 of 2001.  

By the aforesaid judgment and order, the Division Bench of the  

High Court has not only confirmed the order of conviction and  

sentence of Shri Ramdutt, who was convicted by the Trial Court  

under Section 302 of the Indian Penal Code and sentenced him  

to  undergo  imprisonment  for  life  and  for  3  years  rigorous  

imprisonment under the Arms Act but also set aside the order of  

acquittal passed by the Trial Court in the cases of Mahesh and  

Kanhaiyalal.

2. The High Court by passing the impugned judgment and order  

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has convicted both the aforesaid accused persons under Section  

302  read  with  Section  34  of  the  Indian  Penal  Code  and  

sentenced them to undergo rigorous imprisonment for life.  The  

sum and substance  of  the  aforesaid  order  of  conviction  and  

sentence is that all the three accused persons have now been  

convicted under Section 302 read with Section 34 of the Indian  

Penal Code and, therefore, all of them have been sentenced to  

undergo rigorous imprisonment for life.   

3. The  prosecution  story  in  brief  is  that  on  1.11.1993,  the  

complainant Badri Lal(PW 1) along with Rambabu (PW 3), son of  

deceased Kirori, went to their chilly field to water the same.  The  

said field was adjacent to the field of Mahesh and Ramdutt who,  

at that point of time, were watering their field.  When asked by  

the  complainant  and  Rambabu  about  watering  their  field,  

Mahesh and Ramdutt told them that they can water their field  

only after watering of their field is completed by them.

4. It is alleged that on hearing this, PW 1 and PW 3 came back to  

their village to go back again in the afternoon, when while trying  

to release water to their field, they were assaulted by Ramdutt  

and Mahesh.  It is alleged that after the said incident, Ramdutt  

and Mahesh came back running to the village and PW 1 and PW  

3 also came behind them. When PW 1 and PW 3 reached the  

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door,  they heard the sound of  gunshot fire.   On hearing the  

sound, they ran towards the said direction, when on way, they  

saw Ramdutt and Mahesh running with guns in their hands. It  

is alleged that when Ramdutt and Mahesh saw PW 3, Mahesh  

fired a gunshot at Rambabu (PW 3) who saved himself by lying  

down.  Thereafter, PW 1 and PW 3 reached in front of the door  

of Ramnarayan and Devi Prasad when PW 1 saw the body of his  

younger brother Kirori, lying dead on the ground, being hit by a  

gunshot which had hit him on chest and stomach. The body  

was surrounded by Deviprasad,  Ramnath,  Kirori's  wife  Malti,  

Rambabu's  wife  Sunita and other  members,  daughters-in-law  

and daughters.

5. At  that  stage,  Malti  told  PW 1  that  on  hearing  the  news  of  

altercation at the field, Kirori was going towards the field when  

Ramdutt,  Mahesh  and  Kanhaiya  who  were  standing  at  their  

door and that Ramdutt, with the licenced single barrel gun of  

his father Kanhaiya, fired a shot at Kirori  which had hit him  

near the abdomen as a result of which Kirori fell down and died.  

6. The First Information Report was filed by PW 1 at about 3.15  

p.m.  at  the  Police  Station  which  is  14  kms  away  from  the  

village.  On receipt of the First Information Report, a criminal  

case was registered and the police started investigation, during  

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the course of which all the three accused persons were arrested.  

Charge-sheet was filed as against all the three accused persons.  

Pursuant  to  filing  of  chargesheet,  trial  was  held  during  the  

course  of  which  several  witnesses  were  examined  by  the  

prosecution. The defence also examined one witness in support  

of  their  defence.   The  statements  of  all  the  three  accused  

persons were recorded under Section 313 of  the Cr P.C.  and  

thereafter, the learned Trial Court, by the judgment and order  

passed on 9.8.1999, convicted Ramdutt under Section 302 IPC  

and passed an order sentencing him to life imprisonment and 3  

years rigorous imprisonment under Arms Act, respectively.  So  

far as the other two persons are concerned, namely Mahesh and  

Kanhaiya Lal, the present appellants, the Trial Court acquitted  

them on the ground that there had been some embellishment in  

the prosecution case like the allegation that the said accused  

persons holding the hand of the deceased at the time of firing  

upon them by Ramdutt.    

7. Ramdutt (A1) and the State filed appeals before the High Court.  

Both the said appeals  were taken up together  and the  same  

were  disposed  of  by  the  common  order  by  the  High  Court  

whereby the High Court not only upheld the order of conviction  

passed  against  Ramdutt  but  also  passed  a  similar  order  of  

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conviction and sentence as against Mahesh and Kanhaiya Lal  

who were acquitted by the trial court.   

8. Being aggrieved by the aforesaid order of conviction by the High  

Court, Mahesh and Kanhaiya Lal, appellants herein, have filed  

the present appeal in which notice was issued. So far as the  

Ramdutt  -  first  accused  is  concerned,  he  has  not  filed  any  

appeal and, therefore, it appears that he has accepted the order  

of conviction and sentence passed by the trial court and then,  

affirmed  by  the  High  Court.  The  present  appeal,  therefore,  

relates to the order of conviction and sentence passed against  

Mahesh and Kanhaiya Lal who are appellants before us.

9. We have heard the learned counsel appearing for the parties on  

this appeal who have taken us through the entire evidence on  

record as also the contents of the two judgments passed by the  

Trial Court and also by the High Court.

10.The contention that is raised by the learned counsel appearing  

for the appellants is that in the First Information Report which  

was filed by PW 1 at the earliest point of time after the incident,  

the  role  now  attributed  to  the  appellants  herein  were  not  

mentioned at all and, therefore, there could not have been an  

order of conviction and sentence as against the two appellants.  

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It was also submitted by him that the statements of the alleged  

eye-witnesses were recorded by the police after about 8 days of  

the occurrence and, therefore, there was enough scope to make  

out a make believe story and also to put in an embellishment  

and improvement relying on which the appellants are sought to  

be convicted.   

11.According to the learned counsel appearing for the appellants,  

there were number of independent witnesses who were allegedly  

present at the time of occurrence of the incident, but none of  

them was examined and, therefore, the High Court should have  

doubted the manner in which a specific role is being attributed  

to  the  appellants  herein.   The  learned  counsel  submits  that  

there was no enmity between the parties and, therefore, there  

was  no  motive  for  commission  of  the  crime,  at  least  by  the  

present appellants.  He has also submitted that there are two  

versions  which  are  sought  to  be  raised  and,  therefore,  the  

benefit of the same should go to the appellants herein.   

12.We  have  considered  the  aforesaid  submissions  which  were  

refuted by the learned counsel  appearing for  the respondent.  

She  has  drawn  our  attention  to  the  evidence  on  record  to  

submit that some of the translation of the deposition included  

in  the  paper  book  prepared  by  the  appellants  is  not  truly  

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reflecting the accurate statement made by the persons in the  

Court.

13.In order to appreciate the aforesaid contentions, we have also  

examined the original records and on such perusal, we find that  

some of the English translations which have been placed before  

us by filing an additional paper book are indeed not the true  

reflection of the statements made by the witnesses before the  

Court.   

14.Be  that  as  it  may,  we  would  like  to  examine  each  of  the  

contentions  raised  by  the  learned  Counsel  appearing  for  the  

appellants  in  the  light  of  the  records.   So  far  as  the  first  

contention regarding informant not stating anything about the  

role  of  the  appellants  in  the  First  Information  Report  is  

concerned, we find that the aforesaid First Information Report  

was  submitted  by  PW 1  who was  not  an eye-witness  to  the  

incident.   Although  it  has  come  in  evidence  that  he  was  

informed  about  the  incident  by  PW  2,  PW  4  and  PW  5  

immediately  on  his  reaching  the  place  of  occurrence  of  the  

incident, yet since he was not the eye-witness to the incident, he  

may not have stated the said fact in the First Information Report  

for  which  it  cannot  be  said  that  the  entire  prosecution  case  

should falter.  Besides, it is an established law that so far as the  

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First  Information  Report  is  concerned,  it  is  only  a  report  

submitted  informing  the  police  about  the  commission  of  the  

crime. It is not required that the said First Information Report  

should  contain  a  detailed  and vivid  description  of  the  entire  

incident.  Further,  it  cannot  be  expected  from the  informant,  

especially,  when  the  informant  is  a  relative  of  the  

injured/deceased  to  give  each  and  ever  minute  detail  of  the  

incident in the First Information Report. Therefore, PW 1 who  

had  filed  the  information  with  the  police  not  being  an  eye-

witness, it cannot be said that non mentioning about the role  

played by the present appellants in the First Information Report  

would be in any manner fatal to the case of the prosecution.

15.So far as the contention regarding recording of the statements  

by  the  police  after  8  days  of  occurrence  of  the  incident  is  

concerned, a proper and appropriate explanation has been given  

by the Police Officer, who recorded the statements, stating that  

he  had  recorded  the   statements  after  about  8  days  of  the  

occurrence of the incident because religious rituals were going  

on. Due to the aforesaid reason, their statements could not have  

been recorded on 4.11.1993 which is also written in the case  

diary. In that view of the matter and there being a plausible and  

possible explanation given for recording the statements of eye-

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witnesses  after  8  days,  the  same  cannot,  in  any  manner,  

demolish or vitiate the prosecution case.   

16.It is also submitted by the counsel appearing for the appellants  

that  there  was  no  enmity  between  the  parties  which  could  

establish  the  motive  for  the  commission  of  crime.   The  said  

contention, on the face of it, is not acceptable for we find on  

records that the present appellants and the informant had an  

altercation in the field and because of the said altercation, the  

deceased  came  out  of  his  house  and  was  going  to  the  field  

during the process of which the aforesaid incident had occurred  

wherein  he  was  shot  dead  as  alleged  by  the  prosecution.  

Therefore, the motive for the offence is established. There was  

an  enmity  between  the  complainant  party  and  the  accused  

persons and, therefore, the aforesaid submission is found to be  

baseless.   

17.The prosecution has examined at least three eye-witnesses to  

the occurrence of the incident who have stated as to how the  

incident had happened. They have also stated the different and  

various role played by the accused persons.  Since eye witnesses  

were  available  and  examined,  there  was  no  necessity  of  

examining any other witness, inasmuch as, there is no necessity  

for the prosecution to multiply witnesses to prove and establish  

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the prosecution case.   There is  no requirement in the law of  

evidence  that  any  particular  number  of  witnesses  is  to  be  

examined to prove something. The evidence has to be weighed  

and not to be counted. The witnesses who were examined were  

relatives of the deceased and, therefore, there is no ground and  

reason why they should be disbelieved. There is also no reason  

why they would not speak the truth so as to see that the actual  

guilty persons are convicted.

18.It is also submitted that there has been an improvement and  

embellishment  in  the  prosecution  case  and  the  role  of  the  

appellants  have  been  exaggerated  so  as  to  see  that  all  the  

members of the family are punished and are sent to jail.   

19.In order to appreciate the said contention, we have looked into  

the  records.   In  fact,  we  find  that  the  English  translation  

provided by the appellants in the additional paper book of the  

evidence of PW-2 on the role of the appellants in the incident  

alleged  appears  to  be  incorrect.   Same  is  the  case  with  the  

deposition of PW-4. The statements made by the said witnesses  

regarding  the  alleged  role  of  the  present  appellants  in  the  

incident the English translation provided appears to be wrong.  

In that view of the matter, we perused the original depositions of  

the two witnesses which have been recorded in Hindi.  On going  

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through the same, we find that PW2 and PW4 have specifically  

stated that the present appellants were holding the deceased by  

his hands and also exhorted Ramdutt to bring the gun and to  

shoot  at  the  deceased.   The  aforesaid  statements  of  giving  

exhortion and holding the hand of the deceased and Ramdutt  

coming with the gun and fired at him are corroborated. It clearly  

proves  and  establishes  from  the  said  fact  that  the  present  

appellants  also  had  the  common  intention  of  killing  the  

deceased.   It  is  established  from  the  records  that  they  had  

intentionally  become  a  party  to  commit  the  murder  of  the  

deceased.    

20.Section 34 of the Indian Penal Code provides that if two or more  

persons intentionally do an act jointly, the position in law would  

be  just  the  same  as  if  each  of  them  has  done  the  offence  

individually  by himself.  This doctrine of  constructive  criminal  

liability  is  well-established  in  law.  The  very  fact  that  the  

appellants were holding the hand of the deceased and also at  

the same time exhorting Ramdutt to bring the gun and to fire  

upon the deceased so as to kill  him speaks volume and also  

prove and establish that they have done the act intentionally so  

as to see that the deceased is fired upon and shot dead.  

21.In that view of the matter, we find no infirmity in the judgment  

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and order passed by the High Court setting aside the order of  

acquittal  so  far  the  present  appellants  are  concerned.   We  

uphold  the  order  of  conviction  and  sentence  passed  against  

them and dismiss the appeal.  

22.The  applications  which  are  pending,  are  also  disposed  of  in  

terms of the aforesaid order.  

…………… …..........................J.

(DR.  MUKUNDAKAM  SHARMA)

…………… …..........................J.

(ANIL R. DAVE) NEW DELHI SEPTEMBER 13, 2011.

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