RAMESHWAR AND ANOTHERversusSTATE OF MADHYA PRADESH

                         [2019] 11 S.C.R. 363                           363


                 RAMESHWAR AND ANOTHER                                  A
                                 v.
                 STATE OF MADHYA PRADESH
                (Criminal Appeal No. 2448 of 2009)
                         AUGUST 16, 2019                                B
         [R. BANUMATHI AND A. S. BOPANNA, JJ.]
       Penal Code, 1860: s.302 r/w s.34 – Conviction and life
imprisonment – Prosecution case was that on the fateful day,
appellant no.1 armed with farsa (axe) along with five other accused
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persons including appellant no.2 armed with rifles and danda came
near the house of the victim-deceased – Appellant no.1 attacked
the deceased with farsa and exhorted others to kill the deceased –
Deceased ran out of the courtyard – Four co-accused standing at
the door of adjacent house caught hold of the deceased – Mother
of deceased tried to save the deceased and in the process received      D
injuries near her ear – Appellant no.2 fired gun shot at the deceased
which hit his back – Appellant no.1 took gun from accused no.3
and fired at the deceased – When villagers came, all the accused
fled away from the spot – Trial court convicted appellant no.1 and
2 under s.302 r/w s.34 while it acquitted all the other co-accused –
                                                                        E
High Court affirmed the conviction and sentence of life imprisonment
holding that even though there were contradictions in the statement
of PW-1-complainant (wife of deceased) recorded in the court and
her statement in the FIR, however, since the prosecution was able to
prove that the appellants shared the common intention to commit
the murder of the deceased, the court can invoke s.34 and in such       F
a situation, it was not necessary for the prosecution to prove that
the gun shot injuries which resulted in the death of the deceased
was caused by which of the two appellants – On appeal, held: To
invoke s.34, it must be established that the criminal act was done by
more than one person in furtherance of common intention of all – It
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must, therefore, be provided that there was common intention on the
part of several persons to commit a particular crime; and in
furtherance of that common intention, the crime was actually
committed by them – The presence of appellant No.2 was established
by consistent evidence of the eye-witnesses – Admittedly, appellant
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364           SUPREME COURT REPORTS                    [2019] 11 S.C.R.


A     No.2 was armed with rifle and, thus, shared the common intention
      acting in concert with appellant No. 1 – When appellant No.2 has
      been proved to have acted in furtherance of the common intention,
      his conviction under s.302 was rightly affirmed by the High Court
      by invoking the aid of s.34 – Since appellant No.1 passed away
      during pendency of the appeal, and, therefore, appeal against him
B
      is dismissed as abated.
           Dismissing the appeal, the Court
            HELD : 1.As per the post-mortem certificate, the deceased
      sustained one gun shot injury, that is, circular hole of 1.5 cm on
C     his back. 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 these material objects were seized under seizure
      memo. Insofar as accused No.3 (since acquitted) who is said to
      have fired a gun shot, none of the witnesses have stated as to
D     which part of the body of the deceased the said gun-shot was hit.
      Considering the fact that there was no cogent evidence against
      accused No. 3, 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-
E     accused No. 3 who was acquitted. [Para 11] [368-G-H; 369-A-B]
            2. As held by the High Court, even assuming that appellant
      No.1 has fired gun shot, the conviction of appellant No.2 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
F     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 instant case, the presence
      of appellant No.2 was established by consistent evidence of the
G     eye-witnesses viz. PWs 1, 2, 6 and 7. Admittedly, appellant No.2
      was armed with rifle and thus shared the common intention acting
      in concert with accused-appellant No. 1. When appellant No.2
      has been proved to have acted in furtherance of the common
      intention, his conviction under Section 302 IPC was rightly
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    RAMESHWAR AND ANOTHER v. STATE OF MADHYA                               365
                   PRADESH

affirmed by the High Court by invoking the aid of Section 34               A
IPC. There is no reason for warranting interference with the
impugned judgment. The conviction of appellant No.2 under
Section 302 IPC read with Section 34 IPC and the sentence of
life imprisonment imposed upon him is affirmed. Since the
appellant No.1 has passed away, the appeal against him is
                                                                           B
dismissed as abated. [Paras 12-13] [369-B-F]
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2448 of 2009.
      From the Judgment and Order dated 25.06.2008 of the High Court
of Madhya Pradesh, Jabalpur Bench, Gwalior in Criminal Appeal              C
No. 275 of 1995.
      Nagendra Rai, Sr. Adv., Rajesh, Advs. for the Appellants.
      Rahul Kaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi Satyapriya
Satyam, Siddharth Chakravorty (for Mrs. Swarupama Chaturvedi,),
Advs. for the Respondent.                                                  D
      The Judgment of the Court was delivered by
      R. BANUMATHI, J.
      1. 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          E
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.
      2. Brief facts which led to filing of this appeal are:-              F
        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     G
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

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366            SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A     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
B
      when Tejabai tried to catch hold of farsa from accused Rameshwar,
      she sustained injury near her ear. Case of 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.
C     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
D
      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:-
E
            (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;
F
            (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
G
      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.

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    RAMESHWAR AND ANOTHER v. STATE OF MADHYA                                  367
           PRADESH [R. BANUMATHI, J.]

        4. In order to prove the guilt of the accused, prosecution has        A
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
                                                                              B
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 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           C
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
                                                                              D
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          E
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 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        F
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.              G
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
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368             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     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 PW-
      7-Ram Gopal are inconsistent and contradictory to each other and while
B
      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
C     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
D     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,
E     PWs 6 and 7 have stated that appellant 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
F     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
G     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.
H     Insofar as accused No.3-Umacharan (since acquitted) who is said to
     RAMESHWAR AND ANOTHER v. STATE OF MADHYA                                   369
            PRADESH [R. BANUMATHI, J.]

have fired a gun shot, none of the witnesses have stated as to which part       A
of the body of the deceased the said 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.
                                                                                B
       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           C
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      D
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 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       E
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          F
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.
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Devika Gujral                                               Appeal dismissed.




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