MAHESH Vs STATE OF MADHYA PRADESH
Bench: MUKUNDAKAM SHARMA,ANIL R. DAVE
Case number: Crl.A. No.-000503-000503 / 2008
Diary number: 6680 / 2008
Advocates: Vs
C. D. SINGH
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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