STATE OF M.P.versusRAMJI LAL SHARMA & ANR.

754                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 754               [2022] 1 S.C.R.


A                               STATE OF M.P.
                                       v.
                       RAMJI LAL SHARMA & ANR.
                       (Criminal Appeal No. 293 of 2022)
B                              MARCH 09, 2022
              [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
             Penal Code, 1860 – s.302 r/w s.34 – Murder – Common
      Intention – Trial Court held that all the four accused shared the
      common intention to kill the deceased, and convicted them u/s.302
C
      r/w s.34 – High Court allowed appeal of accused no.1 and 3
      (respondent No.1 and 2), by giving them benefit of doubt and by
      observing that there was a contradiction in the ocular and medical
      evidence and therefore their presence itself was doubtful – According
      to High Court, three eye witnesses stated that respondent No.1 and
D     2 were having axe in their hands, and they attacked the deceased
      by their axe, however, as per medical evidence no such injury by
      axe was found – On appeal by the State, held: On facts, there were
      no material contradictions as such between ocular and medical
      evidence, of which benefit of doubt should be given to the accused
      – Presence of all accused was established and proved and the
E
      prosecution was successful in proving that all the accused including
      respondent No.1 and 2 shared the common intention – Even
      otherwise, once it was established and proved by the prosecution
      that all the accused came at the place of incident with a common
      intention to kill the deceased and as such, they shared the common
F     intention, in that case it was immaterial whether any of the accused
      who shared the common intention had used any weapon or not and/
      or any of them caused any injury on the deceased or not – Trial
      Court rightly convicted all the accused including respondent No.1
      and 2 u/s.302 r/w s.34 IPC.
G           Allowing the appeal, the Court
            HELD:1. According to the High Court, eye witnesses PW1,
      PW3 and PW5 stated that accused No.1 and 3 were having axe in
      their hands, they attacked the deceased by their axe, however,
      as per the medical evidence no such injury by axe is found.
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                                      754
         STATE OF M.P. v. RAMJI LAL SHARMA & ANR.                     755


However, it is required to be noted that PW1, PW3 and PW5 are         A
all eye witnesses to the incident and they are believed so far as
the other accused are concerned. It is also to be noted that right
from the very beginning of filing/lodging the FIR the names of all
the accused were disclosed. Accused No.1 and 3 were also named
in the FIR. All the eye witnesses are common in saying that
                                                                      B
accused No.1 and 3 also came along with other accused.
Therefore, their presence has been established and proved by
the prosecution. Even on going through the deposition of PW1,
his case was that accused No.1 first hit deceased with an axe
which was caught by deceased with his hand. If that be so naturally
there could not be any injury on the hand of deceased. Even PW5,      C
who is also one of the witnesses, has also deposed and stated
even in cross-examination that accused no.1 hit axe and that
deceased caught head of axe, therefore, axe could not hit
deceased. Therefore, as such it cannot be said that there are any
material contradictions in the ocular and the medical evidence of
                                                                      D
which benefit of doubt should be given to the accused.
[Para 4.1][759-A-F]
      2 Even otherwise once it has been established and proved
by the prosecution that all the accused came at the place of
incident with a common intention to kill the deceased and as such,
they shared the common intention, in that case it is immaterial       E
whether any of the accused who shared the common intention
had used any weapon or not and/or any of them caused any injury
on the deceased or not. [Para 4.2][759-F-G]
      3. As such the Trial Court gave specific findings on the
common intention shared by all the accused to kill the deceased.      F
However, the High Court has not at all considered the aforesaid
vital aspect of the case. The High Court has also not discussed
and/or re-appreciated the entire evidence on record and has
acquitted accused No.1 and 3 by simply observing that there are
contradictions in the ocular and medical evidence, and therefore      G
the presence of accused No.1 and 3 is doubtful and therefore,
they are entitled to the benefit of doubt. As such there are no
material contradictions between the ocular and medical evidence.
The presence of all the accused have been established and proved
and the prosecution has also been successful in proving that all
                                                                      H
756            SUPREME COURT REPORTS                         [2022] 1 S.C.R.


A     the accused including accused No.1 and 3 shared the common
      intention. Therefore, as such the Trial Court rightly convicted all
      the accused including accused No.1 and 3 (respondent no.1
      and 2) for the offences punishable under Section 302 read with
      Section 34 of the IPC. [Para 4.3][759-G-H; 760-A-C]
B           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 293 of 2022.
           From the Judgment and Order dated 13.12.2018 of the High Court
      of Madhya pradesh, Bench at Gwalior in C.R.A. No.339 of 2006.
           P. V. Yogeswaran, AAG, Gopal Jha, Nishant Verma, Shreyash
C     Bhardwaj, Advs. for the Appellant.
            Prashant Shukla, Divyesh Pratap Singh, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
D
            1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 13.12.2018 passed by the High Court of Madhya Pradesh,
      Bench at Gwalior in Criminal Appeal No.339 of 2006, by which, the
      High Court has allowed the said appeal and has acquitted respondent
      No.1 and 2 herein – original accused No.1 and 3, for the offences
E     punishable under Section 302 read with Section 34 of the IPC, by giving
      benefit of doubt, the State of Madhya Pradesh has preferred the present
      appeal.
             2. As per the prosecution case sometime prior to 8:30 in the
      morning of 17.01.2002, one Devendra, son of Bhagirath, brother of
F     deceased Munshilal, went to the house of accused Ramjilal for demanding
      money for grinding of wheat in the flour mill and accused persons Mukesh
      (A-4) and Brijesh (A-3) met him. When Devendra demanded money,
      then, accused No.3 and accused No.4 assaulted him with kicks and
      punches. Somehow, he rescued himself. The said incident was brought
      to the notice of the complainant Laxminarayan. The brother of Devendra,
G     namely, Ramgopal and father Bhagirath, went to the house of accused
      persons for enquiring about the scuffle. All the accused were going
      towards the house of the deceased Munshilal. While seeing them, the
      cousin brother of deceased namely Laxminarayan also reached the door

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           STATE OF M.P. v. RAMJI LAL SHARMA & ANR.                            757
                         [M. R. SHAH, J.]

of Munshilal. The accused-Mukesh was carrying 12 bore double barreled          A
firearm, accused-Kallu Brijkishore was carrying 12 bore single barreled
firearm and accused Brijesh alias Sadhu alias Brijnandan and Ramjilal
were carrying axe. At that time, the deceased was returning after urinating
in Goda of Ramswaroop. All the accused persons surrounded him.
Accused-Ramjilal hit with the axe on Munshilal, which was obstructed
                                                                               B
and held by the deceased and thereafter, accused Mukesh fired from his
firearm. The accused-Kallu also fired from his firearm. The deceased
Munshilal fell down in the Goda of Ramswaroop. The entire incident
was seen by eye witnesses including the original complainant –
Laxminarayan (PW-1). When Laxminarayan, Devendra and Surender
put Munshilal on the Cot (charpai) to take him to the Police Station but       C
Munshilal died while he was being taken to the Police Station. The
complainant Laxminarayan got recorded the First Information Report of
the incident in the morning at 9:20 against all the four accused for the
offences punishable under Sections 302, 307, 34 of IPC and Section
3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of
                                                                               D
Atrocities) Act. The Investigating Officer initiated the investigation and
recorded the statements of the witnesses. He prepared the punchnama.
He collected the post mortem report/medical evidence. After conclusion
of the investigation, the Investigating Officer filed a chargesheet against
all the accused for the offences punishable under Sections 302, 307 and
34 of the IPC and Section 3(2)(5) of the Scheduled Caste and Scheduled         E
Tribe (Prevention of Atrocities) Act. As the case was exclusively triable
by the Court of Sessions, the case was committed to the Court of Sessions.
The accused pleaded not guilty and therefore, all of them came to be
tried by the learned Trial Court for the aforesaid offences.
       3. To prove the case, the prosecution examined five eye witnesses       F
including PW1, PW3 and PW5. The prosecution also examined Dr. R.K.
Taneja as PW6. The Investigating Officer was also examined by the
prosecution. After closure of the evidence on the side of the prosecution,
further statements of accused under Section 313 of Cr.PC were recorded.
Their case was of total denial. That thereafter, on appreciation of evidence
on record oral as well as the documentary, the learned Trial Court held        G
that all the accused shared the common intention to kill the deceased.
On appreciation of evidence on record, the learned Trial Court held all
the accused guilty for the offences punishable under Section 302 read
with Section 34 of the IPC and sentenced all the accused to undergo life
imprisonment with a fine of Rs.5,000/- each.                                   H
758             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A           3.1 Feeling aggrieved and dissatisfied with the impugned judgment
      and order of conviction the accused preferred Criminal Appeal No.339/
      2006 before the High Court. By the impugned judgment and order, the
      High Court has allowed the appeal preferred by respondent No.1 and 2
      herein – original accused No.1 and 3, by giving them benefit of doubt
      and by observing that there is a contradiction in the ocular and the medical
B
      evidence and therefore their presence itself is doubtful.
            3.2 Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court acquitting respondent No.1 and 2
      herein – original accused No. 1 and 3, by giving them benefit of doubt,
      the State has preferred the present appeal.
C
            4. Having heard learned counsel appearing on behalf of the
      respective parties at length and on going through the impugned judgment
      and order passed by the High Court, it appears that while acquitting the
      accused the High Court has observed in paragraph 14 as under: -
D           “14. After hearing the arguments and going through the record,
            two things are apparent; one, involvement of appellant No.1
            Ramjilal Sharma and Appellant No.3 Brajmohan @ Kallu is not
            made out as ocular evidence is not corroborated by medical
            evidence given by Dr. Taneja (P.W.6) and secondly, as far as
            appellant No.2 Brijkishore Sharma @ Kallu is concerned, in view
E           of specific finding given by Dr. R.K.Taneja (P.W.6), that cause of
            death was homicidal and it occurred because of injury in femoral
            artery as well as gun shot injury in lungs, it can not be said that
            femoral artery is not a vital organ. Thus, it is apparent that Kallu
            shared common intention, whereas presence of appellant No.1
F           and 3 is doubtful. Therefore, appellants No.1 and 3 should have
            been extended benefit of doubt which has been wrongly denied
            by the trial court. When no independent witnesses are examined
            and medical evidence is not corroborated by the prosecution story,
            then conviction was reversed as held by the Hon’ble Supreme
            Court in the case of Lilia Vs. State of Rajasthan as reported in
G           (2014) 16 SCC 303. Therefore, this court finds that this is a fit
            cases to record acquittal in favour of appellants No.1 Ramjilal
            and No.3 Brijnandan @ Brijesh Sharma. As far as conviction of
            appellant No.2 under Section 302 with the aid of Section 34 of
            IPC is concerned, it is clearly made out.”
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           STATE OF M.P. v. RAMJI LAL SHARMA & ANR.                           759
                         [M. R. SHAH, J.]

       Except the above findings/reasoning no other findings are recorded     A
by the High Court.
       4.1 From the impugned judgment and order passed by the High
Court, it appears that what has weighed with the High Court is that
there is discrepancy in the ocular evidence as well as the medical evidence
and/ or the ocular evidence is not corroborated by the medical evidence       B
and therefore, the presence of accused No.1 and 3 is doubtful. According
to the High Court, eye witnesses PW1, PW3 and PW5 stated that
accused No.1 and 3 were having axe in their hands, they attacked the
deceased by their axe, however, as per the medical evidence no such
injury by axe is found. However, it is required to be noted that PW1,
PW3 and PW5 are all eye witnesses to the incident and they are believed       C
so far as the other accused are concerned. It is also to be noted that
right from the very beginning of filing/lodging the FIR the names of all
the accused were disclosed. Accused No.1 and 3 were also named in
the FIR. All the eye witnesses are common in saying that accused No.1
and 3 also came along with other accused. Therefore, their presence           D
has been established and proved by the prosecution. Even on going through
the deposition of PW1, his case was that Ramjilal – accused No.1 first
hit Munshilal with an axe which was caught by Munshilal with his hand.
If that be so naturally there could not be any injury on the hand of
Munshilal. Even PW5, who is also one of the witnesses, has also deposed
and stated even in cross-examination that Ramjilal hit axe and that           E
Munshilal caught head of axe, therefore, axe could not hit Munshilal.
Therefore, as such it cannot be said that there are any material
contradictions in the ocular and the medical evidence of which benefit
of doubt should be given to the accused.
       4.2 Even otherwise once it has been established and proved by          F
the prosecution that all the accused came at the place of incident with a
common intention to kill the deceased and as such, they shared the
common intention, in that case it is immaterial whether any of the accused
who shared the common intention had used any weapon or not and/or
any of them caused any injury on the deceased or not.                         G
       4.3 As such the learned Trial Court in paragraph 35 gave specific
findings on the common intention shared by all the accused to kill the
deceased. However, the High Court has not at all considered the aforesaid
vital aspect of the case. The High Court has also not discussed and/or
re-appreciated the entire evidence on record and has acquitted accused        H
760              SUPREME COURT REPORTS                        [2022] 1 S.C.R.


A     No.1 and 3 by simply observing that there are contradictions in the ocular
      and medical evidence, and therefore the presence of accused No.1 and
      3 is doubtful and therefore, they are entitled to the benefit of doubt. As
      observed hereinabove as such there are no material contradictions
      between the ocular and medical evidence. The presence of all the accused
      have been established and proved and the prosecution has also been
B
      successful in proving that all the accused including accused No.1 and 3
      shared the common intention. Therefore, as such the learned Trial Court
      rightly convicted all the accused including accused No.1 and 3 for the
      offences punishable under Section 302 read with Section 34 of the IPC.
      The High Court has erred in reversing the conviction and acquitting
C     accused No.1 and 3 – respondent No.1 and 2 herein, by giving them the
      benefit of doubt.
             5. In view of the above and for the reasons stated above the
      present appeal succeeds. The impugned judgment and order passed by
      the High Court of Madhya Pradesh in Criminal Appeal No.339/2006 in
D     so far as acquitting respondent No.1 and 2 herein – original accused
      No.1 and 3 for the offences punishable under Section 302 read with
      Section 34 of the IPC is hereby quashed and set aside. The judgment
      and order passed by the learned Trial Court convicting respondent No.1
      and 2 herein - original accused No.1 and 3 for the offences punishable
      under Section 302 read with Section 34 of the IPC is hereby restored.
E     The sentence imposed by the learned Trial Court is also restored. Now
      respondents herein – original accused to undergo the remaining sentence
      as per the judgment and order of conviction and sentence passed by the
      learned Trial Court. Respondent No.1 and 2 to surrender before the
      concerned Jail authorities or Court within a period of four weeks from
F     today. The present appeal is accordingly allowed.

      Bibhuti Bhushan Bose                                         Appeal allowed.




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