NAND KISHORE Vs STATE OF M.P.
Bench: B.S. CHAUHAN,SWATANTER KUMAR, , ,
Case number: Crl.A. No.-000437-000437 / 2005
Diary number: 26953 / 2004
Advocates: T. N. SINGH Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.437 OF 2005
Nand Kishore … Appellant
Versus
State of Madhya Pradesh … Respondent
J U D G M E N T
Swatanter Kumar, J.
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1. The present appeal is directed against the judgment of
the High Court of Judicature of Madhya Pradesh at Jabalpur
dated 26th August, 2004 affirming the judgment of the
Sessions Judge, Datia, Madhya Pradesh dated 30th December,
1998 convicting all the three accused (appellants/petitioners
herein) for an offence under Section 302 read with Section 34
of the Indian Penal Code (IPC) awarding life sentence to each
one of them with a fine of Rs.2,000/- each in default thereto to
undergo rigorous imprisonment for three years.
2. We must notice that vide order dated 28th May, 2005, the
Special Leave Petition in respect of Petitioner Nos.2 and 3,
namely, Mahesh Dhimar and Dinesh Dhimar had already been
dismissed. Thus, we have to consider the present appeal only
in respect of Appellant No.1, namely, Nand Kishore.
3. The learned counsel appearing on behalf of appellant
No.1, while impugning the judgment under appeal contended
that :
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A. the prosecution has not been able to prove its case
beyond reasonable doubt. In fact, there is no direct
evidence to sustain the conviction of the accused. It is
further argued that on the contrary, there are serious
contradictions between the statements of the alleged eye-
witnesses as well as the medical evidence. The accused,
thus, was entitled to benefit of doubt and consequent
acquittal.
B. In any case, the appellant could not have been convicted
at all for an offence under Section 302 read with Section
34 IPC as he had no common intention with other
accused. It is further submitted that he shared neither
participated in the commission of the crime nor was he
carrying any weapon. On the cumulative reading of the
evidence, the ingredients of Section 34 IPC are not
satisfied and, therefore, conviction of the appellant is
vitiated in law.
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4. In order to examine the merit or otherwise of these
contentions, it would be useful for us to refer to the necessary
facts giving rise to the present appeal.
The incident took place on 18th June, 1997 in the night at
about 9-9.30 p.m. at Christian Ka Pura, Bangar Ki Haveli.
Some young boys of the vicinity informed the complainant,
Brij Kishore Bidua, who was later examined as PW1 that a
quarrel has taken place between Mahavir, the deceased, and
Mahesh Dhimar near the house of Mahesh Dhimar. Upon
receiving this information, Brij Kishore, along with Sunil
Badhaulia, went running to the Christian Ka Pura where they
saw that Mahesh Dhimar was holding both the arms of
Mahavir and Dinesh Dhimar was stabbing him with knife in
the chest on the left side and Nand Kishore was also pelting
stones at him. After receiving these injuries, Mahavir
collapsed to the ground. As per the witnesses even after
Mahavir fell, Nand Kishore kept pelting stones on him and
then they ran away from the site. Brij Kishore and Sunil
carried Mahavir to the hospital on their scooter where the
doctor examined him and declared him brought dead. It is the
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case of the prosecution that Mahavir had some dues to recover
from Mahesh Dhimar and to recover that money, Mahavir had
gone to Mahesh Dhimar but the fight occurred and without
any resistance from Mahavir, all the three accused killed him
in the manner afore-referred.
At about 10 p.m. the same day Brij Kishore, the brother
of the deceased Mahavir, lodged a report in the Police Station
at Kotwali Datia where a criminal case No.175/97 under
Section 302 read with Section 34 IPC was registered. This was
investigated by the Investigating Officer who, during
investigation, prepared or caused to be prepared post mortem
report, site plan, recovered a knife on the disclosure of Dinesh,
recovered bricks, took sample of soil soaked in blood and
clothes of the deceased. These things were sent to the forensic
science laboratory for examination. After completing the
investigation, challan was filed against all the accused
persons. They were tried by the Court of competent
jurisdiction. The Sessions Judge, Datia, by a detailed and well
reasoned judgment dated 30th December, 1998, convicted
accused Dinesh for an offence under Section 302 IPC while the
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other two accused, namely, Nand Kishore and Mahesh Dhimar
were convicted for an offence under Section 302 read with
Section 34 IPC and sentenced them as aforestated. This
judgment was unsuccessfully assailed by the accused before
the High Court which dismissed the appeal declining to
interfere either with the judgment of conviction or the order of
sentence.
5. Dissatisfied from the concurrent judgments of the courts,
the accused has filed the present appeal.
6. The statements of PW1, Brij Kishore, Dr. P.K. Srivastava,
PW5 and PW8, Narendra Singh, (Investigating Officer) have to
be examined in some detail.
7. PW1 is the eye-witness to the occurrence and while fully
supporting the case of the prosecution, he stated that Mahesh
Dhimar’s house was about 100 ft. away from the place of
occurrence. He narrated the above facts and stated that
Rajendra and Sunil had also reached the spot following him
and they had witnessed the occurrence. They took the
deceased to the hospital where he was declared brought dead.
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This witness did not refer to any animosity between the
deceased and the accused. PW8 has referred to the entire
investigation, various recovery memos as well as registration of
the FIR (Exhibit P1). Statement of PW1 is corroborated with
the report of Exhibit P1.
8. Dr. P.K. Srivastava, PW5, stated that on 19th June, 1997
at around 7.00 O’clock in the morning, he had examined the
dead body of the deceased and there were incised wounds on
his body on the left side of the chest, right thigh, in the heart
in left lung and 11-12 other lacerated scratches and internal
wounds etc. According to him, injury on the heart caused
death and the deceased had died round about 10-14 hours
before the post mortem examination.
9. There are two main discrepancies which have been
highlighted on behalf of the appellant to claim the benefit of
doubt. Firstly, that according to the doctor, there were nearly
16 wounds on the body of the deceased, while the eye-
witnesses have referred to just two blows by accused Dinesh
Dhimar on the left side of the deceased; and secondly that the
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injuries were stated to have only been caused by a sharp
weapon. Brij Kishore (PW1) had clearly stated that Dinesh
had inflicted the injuries upon the body of the deceased with a
knife. According to Investigating officer (PW8) and Munna Lal
(PW2), the said knife was recovered by Panchnama of recovery
(Ex. P-6). However, PW1 did not specifically state in the Court
that the knife was recovered by going to the house of the
accused. There is some element of difference between these
statements but it in no way amounts to a material
contradiction or discrepancy which has caused any prejudice
to the accused. These so-called discrepancies can easily be
explained and have been dealt with in the judgment under
appeal appropriately. In his examination in which PW1 has
stated that after arrest of Dinesh, the police had questioned
him and he had told them about the knife which was
recovered. However, he stated that he does not remember the
exact place from where the recovery was made due to lapse of
time. He, however, with certainty states that a panchnama
was prepared and it was signed. In his cross examination he
categorically stated “the knife was recovered before me when I
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was called in Kotwali by Vermaji and I had seen that knife in
kotwali and the knife had been recovered before the statement
of Dinesh was recorded’. This evidence of the witness has to
be read in conjunction with the statement of PW8 and PW 2.
Upon such reading recovery of the knife from the house of the
accused is established. Further, the doctor has referred to
various injuries on the body of the deceased including
abrasions and small cuts which could have been a result of
pelting of stones by Nand Kishore upon the deceased even
after he had fallen on the ground. While rejecting the
contention with respect to the second alleged discrepancy, it
must be borne in mind that the Court has to examine the
statement of a witness as a whole. The Court may not be in a
correct position to arrive at any final conclusion while only
reading or relying upon a sentence in the statement of a
witness that too by reading it out of context. The evidentiary
value of a statement should normally be appreciated in its
correct perspective, attendant circumstances and the context
in which the statement was made. As far as the alleged
discrepancy with regard to recovery of knife is concerned, it is
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not possible for the Court to attach undue importance to this
aspect. The court has to form an opinion about the credibility
of the witness and record a finding as to whether his
deposition inspires confidence. “Exaggerations per se do not
render the evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when the entire
evidence is put in a crucible for being tested on the touchstone
of credibility.” Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as improvements,
as the same may be elaborations of the statement made by the
witness earlier. “Irrelevant details which do not in any way
corrode the credibility of a witness cannot be labelled as
omissions or contradictions.” The omissions which amount to
contradictions in material particulars, i.e., materially affect the
trial or core of the prosecution’s case, render the testimony of
the witness liable to be discredited. [Vide: State Represented
by Inspector of Police v. Saravanan & Anr. [(2008) 17 SCC 587],
Arumugam v. State [(2008) 15 SCC 590] and Mahendra Pratap
Singh v. State of Uttar Pradesh [(2009) 11 SCC 334]. The knife
was recovered in furtherance to the disclosure statement made
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by Dinesh Dhimar. The recovery memo which was duly
proved in accordance with law, according to the medical
evidence given by PW5, and the statement of the investigating
officer, PW8, clearly show that knife was recovered from the
house of Dinesh Dhimar and the injuries on the body of the
deceased were inflicted by the knife. Thus, these alleged
discrepancies can hardly be of any advantage to the accused.
10. Another very significant aspect of this case is that the
prosecution had not examined Rajendra and Sunil as
prosecution witnesses and this issue was raised on behalf of
the defence that the Court should draw adverse inference from
non-examination of these witnesses. Witness Rajendra was
given up as the prosecution felt that he would be hostile to the
case of the prosecution but Sunil himself was examined by the
accused as its own witness. Once Sunil was examined as
witness of the defence, the objection taken by the appellant
loses its legal content. DW1, though appeared as witness for
the defence, supported the case of the prosecution resulting in
his being declared as a hostile witness by the counsel
appearing for the accused. Therefore, the statement of DW1
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could be and has rightly been relied upon by the learned
Sessions Judge while convicting the accused of the offence.
The statement of DW1 has fully corroborated the statement of
PW1. He stated that there were nearly 20 to 30 houses in that
Mohalla and denied the suggestion made to him by the defence
counsel that he had not seen anything on the fateful day and
was not witness to the occurrence. He also, specifically,
denied the suggestion that he was related to the family of the
deceased. In his cross-examination, he has clearly stated that
Mahesh Dhimar had caught hold of both the hands of the
deceased and Dinesh Dhimar had given blows on the chest of
the deceased by a knife and Nand Kishore had pelted stones
on the deceased. Lastly, he also stated that he had taken the
deceased to the hospital along with PW1. Confronted with this
evidence, the appellant can hardly even attempt to argue that
there is no definite evidence on record to prove the
commission of the offence by the appellant. There is definite
documentary, ocular and medical evidence and more definitely
statement of defence witness itself to repel the plea of the
appellant that he has been falsely implicated in the case.
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11. Now, we would examine whether the conviction of the
appellant under Section 302 with the aid of Section 34 by the
courts is sustainable in law or not. For the application of
Section 34 IPC, it is difficult to state any hard and fast rule
which can be applied universally to all cases. It will always
depend upon the facts and circumstances of the given case
whether the persons involved in the commission of the crime
with a common intention can be held guilty of the main
offence committed by them together. Provisions of Section 34
IPC come to the aid of law while dealing with cases of criminal
offence committed by a group of persons with common
intention. Section 34 reads as under :
“34. Acts done by several persons in furtherance of common intention.— 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.”
A bare reading of this section shows that the section
could be dissected as follows :
(a) Criminal act is done by several persons;
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(b) Such act is done in furtherance of the common intention
of all; and
(c) Each of such persons is liable for that Act in the same
manner as if it were done by him alone.
In other words, these three ingredients would guide the
court is determining whether an accused is liable to be
convicted with the aid of Section 34. While first two are the
acts which are attributable and have to be proved as actions of
the accused, the third is the consequence. Once criminal act
and common intentions are proved, then by fiction of law,
criminal liability of having done that act by each person
individually would arise. The criminal act, according to
Section 34 IPC must be done by several persons. The
emphasis in this part of the section is on the word ‘done’. It
only flows from this that before a person can be convicted by
following the provisions of Section 34, that person must have
done something along with other persons. Some individual
participation in the commission of the criminal act would be
the requirement. Every individual member of the entire group
charged with the aid of Section 34 must, therefore, be a
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participant in the joint act which is the result of their
combined activity. Under Section 34, every individual offender
is associated with the criminal act which constitutes the
offence both physically as well as mentally, i.e., he is a
participant not only in what has been described as a common
act but also what is termed as the common intention and,
therefore, in both these respects his individual role is put into
serious jeopardy although this individual role might be a part
of a common scheme in which others have also joined him and
played a role that is similar or different. But referring to the
common intention, it needs to be clarified that the courts must
keep in mind the fine distinction between ‘common intention’
on the one hand and ‘mens rea’ as understood in criminal
jurisprudence on the other. Common intention is not alike or
identical to mens rea. The latter may be co-incidental with or
collateral to the former but they are distinct and different.
12. Section 34 also deals with constructive criminal liability.
It provides that where a criminal act is done by several
persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it
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was done by him alone. If the common intention leads to the
commission of the criminal offence charged, each one of the
persons sharing the common intention is constructively liable
for the criminal act done by one of them. {Refer to Brathi alias
Sukhdev Singh v. State of Punjab [(1991) 1 SCC 519]}.
13. Another aspect which the Court has to keep in mind
while dealing with such cases is that the common intention or
state of mind and the physical act, both may be arrived at the
spot and essentially may not be the result of any pre-
determined plan to commit such an offence. This will always
depend on the facts and circumstances of the case, like in the
present case Mahavir, all alone and unarmed went to demand
money from Mahesh but Mahesh, Dinesh and Nand Kishore
got together outside their house and as is evident from the
statement of the witnesses, they not only became aggressive
but also committed a crime and went to the extent of stabbing
him over and over again at most vital parts of the body
puncturing both the heart and the lung as well as pelting
stones at him even when he fell on the ground. But for their
participation and a clear frame of mind to kill the deceased,
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Dinesh probably would not have been able to kill Mahavir.
The role attributable to each one of them, thus, clearly
demonstrates common intention and common participation to
achieve the object of killing the deceased. In other words, the
criminal act was done with the common intention to kill the
deceased Mahavir. The trial court has rightly noticed in its
judgment that all the accused persons coming together in the
night time and giving such serious blows and injuries with
active participation shows a common intention to murder the
deceased. In these circumstances, the conclusions arrived at
by the trial Court and the High Court would not call for any
interference.
14. The learned counsel appearing for the appellant had
relied upon the judgment of this Court in the case of
Shivalingappa Kallayanappa & Ors. v. State of Karnataka
[1994 Supp. (3) SCC 235] to contend that they could not be
charged or convicted for an offence under Section 302 with the
aid of Section 34 IPC. The said judgment has rightly been
distinguished by the High Court in the judgment under
appeal. In that case, the Supreme Court had considered the
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role of each individual and recorded a finding that there was
no common object on the part of the accused to commit
murder. In that case, the court was primarily concerned with
the common object falling within the ambit of Section 149,
IPC. In fact, Section 34 IPC has not even been referred to in
the afore-referred judgment of this Court.
15. Another case to which attention of this Court was invited
is Jai Bhagwan & Ors. v. State of Haryana [(1999) 3 SCC 102].
In that case also, the Court had discussed the scope of Section
34 IPC and held that common intention and participation of
the accused in commission of the offence are the ingredients
which should be satisfied before a person could be convicted
with the aid of Section 34 IPC. The Court held as under :
“10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred
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from the facts and circumstances of each case.”
16. The facts of the present case examined in light of the
above principles do not leave any doubt in our minds that all
the three accused had a common intention in commission of
this brutal crime. Each one of them participated though the
vital blows were given by Dinesh Dhimar. But for Mahesh
catching hold of arms of the deceased probably the death
could have been avoided. Nand Kishore showed no mercy and
continued pelting stones on the deceased even when he
collapsed to the ground. The prosecution has been able to
establish the charge beyond reasonable doubt.
17. The judgments of the courts below do not suffer from any
legal infirmity or appreciation of evidence. While finding no
merit in the appeal, we dismiss the same.
....................................J. [Dr. B.S. Chauhan]
....................................J.
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[Swatanter Kumar] New Delhi; July 7, 2011