REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2448 OF 2009

RAMESHWAR AND ANOTHER                         …..Appellants

VERSUS

STATE OF MADHYA PRADESH               ….Respondent

J U D G M E N T

R  . BANUMATHI, J.

This appeal arises out of the judgment dated 25.06.2008

in Criminal Appeal No.275 of 1995 passed by the High Court of

Madhya Pradesh at Gwalior Bench in and by which the High

Court  has  affirmed  the  conviction  of  both  the  appellants

(accused No.6 and 5) under Section 302 IPC read with Section

34 IPC and the sentence of life imprisonment imposed upon

them along with fine of Rs.5,000/- each.  

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2. Brief facts which led to filing of this appeal are:-

On 08.01.1984 at about 10:00 am, complainant-Subhadra

(PW-1), wife of deceased Ram Autar was cooking food in her

house and deceased Ram Autar was taking the meals. After

taking meals, deceased went out to the courtyard of the house

for drinking water. At that time, appellant No.1-Rameshwar with

whom the deceased had rivalry came to the courtyard armed

with a farsa (axe) and five other accused persons armed with

rifles and  danda were also standing at the door of one Kedar

Seth,  neighbour  and  amongst  them,  appellant  No.2-Balaram

was  also  there.  Appellant  No.1  exhorted  others  to  kill  the

deceased Ram Autar and thereafter,  appellant No.1 attacked

the deceased with  farsa.  Deceased ran out of the courtyard.

Four persons standing at the door of Kedar Seth caught hold of

deceased. Appellant No.1-Rameshwar and accused No.1-Ram

Bharosey came there and joined the other co-accused. At that

time, Tejabai, mother of deceased came and laid down on Ram

Autar  in  order  to  save  him.  Accused  separated  Tejabai  and

when  Tejabai  tried  to  catch  hold  of  farsa  from  accused

Rameshwar,  she  sustained  injury  near  her  ear.  Case  of

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prosecution  is  that  accused Rameshwar  and Ram Bharosey

caught hold of deceased and accused Balaram fired gun shot

at deceased Ram Autar which hit the back of deceased due to

which  deceased  fell  down  sustaining  the  gun  shot  injury.

Accused Rameshwar also is said to have taken the gun from

accused No.3-Umacharan and fired  at  deceased Ram Autar

due to which,  deceased Ram Autar  sustained injuries at  the

hands of accused Rameshwar also. When the villagers came,

all  the  accused  fled  away  from  the  spot.  On  the  complaint

lodged  by  PW-1-Subhadra,  wife  of  deceased,  FIR  in  Crime

Case No.08/84 was registered under Sections 452, 147, 148,

302, 302 read with Section 149 IPC and under Sections 11 and

13  of  the  M.P.  Dakaiti  Aur  Vyapharan  Prabhavit  Kshetra

Adhiniyam, 1981.  

3. Dr.  P.S.  Tomar,  PW-10 had conducted the post-mortem

and found the following injuries on the dead body of deceased

Ram Autar:-

(i) One circular hole of 1.5 cm on the back of deceased, situated in the middle of spinal cord;

(ii) Injury in the muscle;

(iii) Spinal bone of deceased was fractured;  

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(iv) Injury in lower blood vein.  

Five pellets were found inside the spinal cord of deceased and

all these pellets were sealed and handed over to Police. PW-10

issued post-mortem certificate (Ex.P6) opining that  deceased

died  of  the  injuries  and  injury  No.1  was  sufficient  to  cause

death. Appellant No.1-Rameshwar was arrested on 23.04.1984

and on being interrogated, he gave the statement which led to

recovery of axe in the gonad under Ex.-P7-seizure memo. After

completion of investigation, charge sheet was filed against the

appellants and other four accused in the aforesaid offence.  

4. In order to prove the guilt of the accused, prosecution has

examined  PW-1-Subhadra,  wife  of  deceased,  PW-2-Ram

Narayan, father of deceased, PW-6-Katori Bai and PW-7-Ram

Gopal and the neighbours all of whom have spoken about the

occurrence  and  also  about  the  overt  act  of  the  accused.

Prosecution has also examined doctor who conducted autopsy

and other  official  witnesses.   Upon consideration of  the oral

evidence, the trial  court  held that the oral  evidence is amply

corroborated by the medical evidence and also the recovery of

axe  at  the  instance  of  appellant  No.1-Rameshwar.  The  trial

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court held that the prosecution has established the guilt of the

accused  beyond  reasonable  doubt  and  convicted  appellant

No.1-Rameshwar  and appellant  No.2-Balaram under  Section

302 IPC read with Section 34 IPC and sentenced each of them

to undergo life imprisonment along with fine of Rs.5,000/- each.

Insofar as offence under M.P. Dakaiti Aur Vyapharan Prabhavit

Kshetra Adhiniyam is concerned, the trial court held that there

is no evidence on record to prove that the incident was done

with the help of any dacoit and so, they were acquitted under

the Act. The trial court acquitted all other accused from all the

charges.  Being  aggrieved,  the  appellants  have  preferred

appeal before the High Court.  

5. The  High  Court  held  that  even  though  there  are

contradictions in the statement of PW-1 recorded in the court

and her statement in the FIR, since the prosecution has proved

that  the  appellants  have  shared  the  common  intention  to

commit  the  murder  of  the  deceased,  the  court  can  invoke

Section 34 IPC and in such a situation, it was not necessary for

the prosecution to prove that the gun shot injuries which has

resulted in the death of the deceased was caused by which of

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the two appellants. The High Court affirmed the conviction of

the appellants under Section 302 IPC read with Section 34 IPC

and  the  sentence  of  life  imprisonment  imposed  upon  them.

Being aggrieved, the appellants are before us.

6. During  the  pendency  of  the  appeal  before  this  Court,

appellant  No.1-Rameshwar  passed  away  and  the  appeal

against him stands abated.

7. On  behalf  of  appellant  No.2,  we  have  heard  the

submission of Mr. Nagendra Rai, learned senior counsel.  We

have also heard Mr. Rahul Kaushik, learned counsel on behalf

of  the  respondent  and perused the impugned judgment  and

other materials on record.

8. Learned senior counsel appearing on behalf of appellant

No.2 has submitted that the High Court erred in affirming the

conviction of the appellant No.2-Balaram by invoking Section

34 IPC. It was submitted that there was no clear evidence for

arriving at the conclusion that there was any prior concert or

meeting  of  mind  before  the  commission  of  offence.  It  was

further submitted that the deposition of the eye-witnesses viz.

PW-1-Subhadra,  PW-2-Ram  Narayan,  PW-6-Katori  Bai  and

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PW-7-Ram Gopal  are inconsistent  and contradictory to each

other and while so, the trial court erred in basing the conviction

upon such inconsistent evidence and the High Court erred in

affirming the conviction and the impugned judgment convicting

appellant No.2-Balaram is not sustainable.

9. Learned counsel appearing on behalf of the respondent-

State has submitted that upon appreciation of oral evidence of

the eye-witnesses and other evidence, the High Court rightly

affirmed  the  conviction  of  the  appellants  and  the  impugned

judgment warrants no interference.

10. Insofar  as  the  contention  that  there  are  contradictions

between the evidence of PW-1 made before the court and her

statement in Dehati  Nalishi (Ex.-P1), it  was submitted that in

Ex.-P1-Dehati Nalishi, PW-1 has stated that there were three

gun  shots  -  one  by  accused  Rameshwar,  one  by  accused

Balaram which caused injury on the back of the deceased and

one by accused Umacharan which caused injury on the body of

the deceased. In their evidence before the court, PWs 1 and 2

have stated that  appellant No.1 had fired gun shot upon the

deceased; whereas, PWs 6 and 7 have stated that appellant

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No.2 had fired the deceased with his rifle. The trial court held

that such contradictions would not affect the prosecution case

because  in  Dehati  Nalishi,  PW-1  has  clearly  stated  that

appellant No.2-Balaram had fired upon the deceased from his

rifle.  The  statement  of  PW-1 in  Ex.-P1  appears  to  be  more

reliable because her statement in Ex.-P1 is corroborated by the

statement of PWs 6 and 7. As per the evidence of PWs 6 and

7, appellant No.2 armed with rifle was present at the spot and

that there were two gun shots at the time of the incident which

were fired by accused Rameshwar and Balaram.  

11. As  per  Ex.-P6-post-mortem  certificate,  deceased  Ram

Autar sustained one gun shot injury, that is, circular hole of 1.5

cm on his back. Ram Lakhan (PW-15)-the Investigating Officer

had  seized one  .12 bore  cartridge and  one  .12 bore  empty

cartridge from the spot. PW-15 also seized two plastic pieces

which  were emitting  the smell  of  gun  power  and  the  above

material  objects  were  seized  under  Ex.-P11-seizure  memo.

Insofar as accused No.3-Umacharan (since acquitted) who is

said  to  have  fired  a  gun  shot,  none  of  the  witnesses  have

stated as to which part of the body of the deceased the said

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gun-shot was hit. Considering the fact that there was no cogent

evidence against Umacharan, the trial court granted benefit of

doubt and acquitted him. As rightly held by the High Court, the

evidence  against  the  appellants-accused  is  not  identical  as

against the co-accused Umacharan who was acquitted.  

12. Learned senior counsel for appellant No.2 mainly urged

that there are contradictions in the evidence of the witnesses

as to who fired gun shots on deceased Ram Autar. As held by

the High Court, even assuming that appellant No.1-Rameshwar

has fired gun shot,  the conviction of  appellant  No.2-Balaram

can be sustained with  the aid  of  Section 34 IPC.  To invoke

Section 34 IPC, it must be established that the criminal act was

done  by  more  than  one  person  in  furtherance  of  common

intention of all. It must, therefore, be provided that (i) there was

common intention on the part of several persons to commit a

particular  crime;  and  (ii)  in  furtherance  of  that  common

intention,  the  crime was actually  committed by  them.  In  the

present  case,  the  presence  of  appellant  No.2  has  been

established by consistent  evidence of  the eye-witnesses viz.

PWs 1, 2, 6 and 7. Admittedly, appellant No.2 was armed with

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rifle and thus shared the common intention acting in concert

with  accused  Rameshwar.  When  appellant  No.2  has  been

proved to have acted in furtherance of the common intention,

his conviction under Section 302 IPC was rightly affirmed by

the High Court by invoking the aid of Section 34 IPC. We do not

find any reason for warranting interference with the impugned

judgment.

13. In  the  result,  the  conviction  of  appellant  No.2-Balaram

under  Section  302  IPC  read  with  Section  34  IPC  and  the

sentence of  life  imprisonment  imposed upon him is  affirmed

and this  appeal  is  dismissed  qua  appellant  No.2.  Since  the

appellant  No.1-Rameshwar  has  passed  away,  the  appeal

against him is dismissed as abated. The appellant No.2 shall

surrender within a period of six weeks from today to serve the

remaining period of sentence, failing which he shall be taken

into custody.

                                                   ………………………….J.                                                                [R. BANUMATHI]

………………………….J.                                                                [A.S. BOPANNA] New Delhi; August 21, 2019.

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