Ghanshyam & Anr vs State Of Madhya Pradesh

Sheel Nagu, J

Both the aforesaid appeals arising out of the same incident, same judgment of conviction and sentence in respect of two accused, involving the murder of Puran Singh, having been heard analogously are decided by the present common order.

Dehati nalishi was lodged on 09.01.2008 by complainant Sabo Bai PW-3 (widow of the deceased) at police station alleging that on the same day at about 05:30pm, when she alongwith her deceased husband were irrigating the agriculture field, both the appellants came to the spot. Appellant Raju was wielded firearm (single barrel firearm) whereas appellant No.2-Ghansyam wielded lohangi/lathi. Dehati nalishi further reveals that the appellant Raju fired at the deceased who received gunshot injury and died on the spot. On hearing the noise of gunshot, son of deceased Vishal PW-4 came to the spot when the assailants fled away. Dehati nalishi disclosed the motive to be past animosity between the rival parties.

2.1. Thereafter, investigation was conducted by completing all the statutory formalities and charge-sheet was filed against both the appellants. Charge u/S. 302 of IPC against both the appellants was framed. Both the appellants abjured guilt and sought trial.

2.2. The prosecution produced nine witnesses namely Keshv Singh (PW-1), Hanumant Singh Rawat (PW-2), Sabo (PW-3), Vishal (PW-4), Kunwar Pal (PW-5), Vikash Singh (PW-6), Rakesh Kumar (PW-7), Dr. N.S.Chauhan (PW-8) and Vinod Kumar Gupta (PW-9).

The Postmortem conducted by Dr. N.S.Chauhan (PW-8) opined cause of death as shock due to excessive bleeding from right and left lungs owing to firearm injury over the right scapular region. Thus, the evidence on record leaves no manner of doubt that death of deceased Ranu was homicidal in nature.

The trial Court after marshalling the evidence returned the finding of guilty where both the appellants were punished u/S.302 of IPC with life imprisonment.

That out of the prosecution witnesses PW-1 Keshav Singh and PW-2 Hanumant Singh Rawat did not support the story of prosecution while PW-3 Sabo (widow of deceased) is the prime eye-witness who witnessed the incident and has supported the prosecution story. Besides PW-4 Vishal son of the deceased has also supported the story of prosecution. PW-5 Vikash Singh relate to hearsay evidence while other PWs are formal witness. PW-8 Dr.N.S.Chauhan conducted autopsy and PW-9 Vinod Gupta is Investigation Officer both of whom supported the story of prosecution.

Learned counsel for the appellant has primarily contended that though he does not dispute the material and finding indicate that fatal injury caused to the deceased Puran was attributed to the appellant Raju but it is urged that there is enough extenuating material that appropriate conviction ought to have been u/S.304 Part-II of IPC and not u/S.302 of IPC. The reasons assigned by the learned counsel for the appellants in this regard are as follows:-

Appellant Raju is attributed with only single gunshot injury which reveals absence of intention to kill.

Bullet was found in the fatal wound whereas the firearm used by the appellant Raju was a pellet gun which could not fire bullets.

No weapon could be seized from the appellants.

Dehati nalishi (Ex.P-4) is not trustworthy as it was not recorded at the scene of crime.

Both PWs 1 and 2 who were witnesses to the discovery statement vide Ex.P-2 and also to consequential seizure of firearm vide Ex.P-3, turned hostile denied that seizure was made in their presence. Discovery statement was also denied to have been signed in the presence of appellants.

The fatal injury was on non-vital part of the body i.e. shoulder with the entry wound at the back of the deceased and not on the chest.

Learned counsel for the appellants placed reliance on 2009 AIR SCW 671 and decisions of the division Bench dated 28.05.2018 in Cra.No.628/2008 and Cra.No.489/2012 (for the purpose of scope of applicability of Sec.34 of IPC) and the judgment dated 29.08.2018 in Cra.No.833/2009

As regards the challenge to the conviction of the appellant Ghanshyam the following grounds have been raised.

There is no overt act alleged against appellant-Ghanshyam except that he came armed with lohangi/lathi alongwith appellant-Raju and was merely present when appellant Raju caused the fatal injury whereafter both the appellants ran away from the spot together.

The conviction of appellant-Ghanshyam is with the aid of Sec.34 of IPC which is not made out in the attending facts and circumstances of the case.

Lathi/lohangi alleged to be wielded by appellant-Ghanshyam was not recovered from him.

There is total absence of motive on the part of appellant-Ghanshyam.

As regards appellant-Raju in Criminal Appeal.No.226/2009, it is seen that the prosecution case found to be proved against him is that he shot the deceased on his scapular region. The entry wound was found at the back of the deceased near scapula. The evidence in shape of testimony of Sabo- PW-3 (widow of the deceased) reveals that after having shot the deceased, appellant-Raju had ample time to reload his gun and take a repeat shot, since PW-3 Sabo states that her son PW-4-Vishal came to the scene of crime after a while from the agricultural field situated at a distance where he was working. Despite having ample time to take a second shot, the evidence disclose that no such attempt was made by the appellant-Raju. Sabo-PW-3 has stated in her cross-examination that her son PW-4 was working in the agricultural field situated about half kilometer away from the scene of incident and arrived within half an hour of gun shot being fired. PW-3 Sabo also states in her cross-examination that appellant-Raju after having assaulted the deceased did not stay at the scene of crime but left immediately thereafter. These categorical revelation of sole eye- witness of the incident PW-3 disclose that despite having ample opportunity of using firearm again, no such attempt was made by the appellant-Raju.

The aforesaid extenuating circumstance is corroborated by other pieces of indirect evidence in shape of ballistic and medical evidence discloses that bullet was found in the fatal injury whereas the ocular evidence discloses use of pellet gun by the appellant-Raju. Moreso, no firearm was seized from the appellant-Raju. Both PWs-1 and 2 who were witness of the discovery statement as Ex.P-3 and consequently seizure memo P-3, have turned hostile. Both these witnesses besides admitting their signatures on the memorandum u/S.27 of Evidence Act and the seizure memo, did not admit to any other aspect of the said two exhibits. Both these witnesses denied the presence of appellant at the time when memorandum u/S.27 was prepared.

As regards appellant-Raju in Criminal Appeal.No.226/209 it is seen that the prosecution case found to be proved against him is that he shot the deceased on the scapular region. The entry wound was found at the back of the deceased near the scapula. The testimony of widow PW-3 of deceased reveals that after having shot the deceased, appellant-Raju had ample time to reload his gun and take a repeat shot, since PW-3 states that her son PW-4-Vishal come to the scene of crime after a while from the agricultural field situated at a distance where he was working. Despite having ample time to take a second shot, the evidence discloses that no such attempt was made by appellant-Raju. PW-3 has stated in her cross-examination that her son PW-4 was working in the agricultural field situated about half a kilometer away from the scene of incident and had arrived within half an hour of the gun shot being fired. PW-3 also states in para-5 of her cross-examination that appellant-Raju after having assaulted the deceased did not stay at the scene of crime but left immediately thereafter. These categorical revelations of the sole eye-witness of incident PW-3 disclose that despite having ample opportunity of using firearm again, no attempt of repeat fire was made by the appellant-Raju.

The aforesaid extenuating circumstance is corroborated by other piece of indirect evidence in shape of ballistic and medical evidence disclosing that bullet was found in fatal injury whereas the ocular evidence disclose use of a pellet gun by the appellant-Raju and the injury inflicted on the non-vital part of the body. Moreso, no firearm was seized from appellant-Raju. Both PWs-1 and 2 namely Keshav Singh (PW-1), Hanumant Singh Rawat (PW-2) who were witnesses to discovery statement as Ex.P-2 and consequential seizure witness PW-3, turned hostile. Both these witnesses besides admitting the signatures on the memorandum u/S.27 of Evidence Act and the seizure memo did not admit to any other aspect of said two exhibits. Both these witnesses denied presence of appellant at the time when memorandum u/S.27 of Evidence Act was prepared. These witnesses further denied that any weapon was recovered and seized vide Ex.P-3, from appellant Raju. Another extenuating circumstance is that the firearm was used to inflict injury in the upper part of back of the deceased with no attempt to repeat the firearm. Moreso, prosecution did not subject the weapon alleged to be used but not seized from the appellant-Raju, to ballistic expert examination.

The aforesaid extenuating circumstances, raise a legitimate impression that the appellant-Raju had no intention of causing murder of deceased since all important element of intention which is a necessary concomitant in the offence of murder appears to be missing.

Accordingly, appellant-Raju has made out a case for conversion of his conviction from one u/S.302 to Sec.304 Part-II of IPC.

As regards to appellant-Ghanshyam in CRA.No.143/2009, it is seen that neither the ocular evidence in shape of eye-witness-PW-3 widow of the deceased and PW-4 son of the deceased who was the first to come at the spot immediately after the incident had taken place, do not allege any overt act on the part of appellant Ghashyam except wielding a lohangi/lathi which has not been recovered from the appellant Ghanshyam.

The conviction of Ghanshyam is with the aid of Sec.34. The implication of Ghanshyam with the aid of common intention u/S.34 can be sustained only when there is evidence of Ghanshyam sharing common intention with Raju of causing murder of deceased. Except appellant Ghanshyam accompanying appellant Raju and arriving at the spot, wielding lohangi/lathi which was not recovered from him, and fleeing alongwith appellant Raju, nothing else has been alleged against the appellant-Ghanshyam.

15.1 When an offence can be proved with the aid of Sec.34, has been explained succinctly by the Apex Court in the various judgments which are reproduced below for ready reference and convenience:-

Pandurang Vs. State of Hyderabad reported in AIR 1955 SC 216 In the case of Sec. 34, it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of an there, the act must have been done in furtherance of the common intention of them all.

Mehbub Shah Vs. Emperor reported in AIR 949 PC 118 Accordingly, there must have been prior meeting of minds. Several persons can simultaneously attack a man and each and have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the Section because there was no prior meeting of minds to form a prearranged plan. Garib Singh Vs. State of Punjab reported in 1972 Cr LJ 1286 (SC) Therefore, Sec. 34 IPC would apply if no charge is framed under that section provided of course from the evidence it becomes clear that there was prearranged plan to achieve the commonly intended object. Sewa Ram Vs. State of U.P. reported in 2008 Cr.LJ 802 (SC) Section 34 has been enacted on principle of joint liability of a criminal act. This section is only a rule of evidence and does not create a substantive offence. The distinctive feature is element of participation in action and essence of liability is to be found in existence of a common intention animating accused to do a criminal act in furtherance of such intention.

"In the case of Willie (William) Slaney Vs. State of Madhya Pradesh reported in AIR 1956 SC 116 the Apex Court has held as under :-

(77). ......there is much difference in the scope and applicability of sections 34 and 149, though they have some resemblance and are to some extent overlapping. The two sections are again compared and contrasted in AIR 1954 SC 204 (J). Section 34 does not by itself create any offence, whereas it has been held that section 149 does. In a charge under section 34, there is active participation in the commission of the criminal act; under section 149, the liability arises by reason of 'the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime"

(emphasis supplied)

In the case of Dukhmochan Pandey Vs. State of Bihar reported in (1997) 8 SCC 405 the Apex Court has held as under:-

"6. ........The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a pre-arranged plan which in turn pre-supposes a prior meeting of mind. But in a given case such common intention which developed at the spur of the moment is different from a similar intention actuated a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment. (See Kripal Vs. State of U.P. reported in AIR 1954 SC 706, Pandurang Vs State of Hyderabad reported in AIR 1955 SC 216 and Mohan Singh Vs. State of Punjab reported in AIR 1963 SC 174 ). The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice. ...."

Thus appellant Ghanshyam, cannot, in the given facts and circumstances, be attributed with sharing with Raju the common intention of murder especially in the absence of any evidence of meeting of minds between the two appellants, prior to or during the course of the incident and also absence of overt act on the part of Ghanshyam.

From the aforesaid analysis, the only conclusion that can be drawn is that appellant Raju knew that the injury inflicted by him by way of firearm in the ordinary course of nature could cause death of deceased.

Thus, this Court is of the considered view that it is not proved beyond all reasonable doubt that appellant Raju had any intention of committing murder of deceased. In the absence of all important element of intention, this Court deems it appropriate to allow both these criminal appeals to the extent indicated below:-

As regards the criminal appeal of Raju bearing CRA.No.226/2009, the conviction u/S.302 of IPC is converted to that u/S.304 Part-II of IPC and since the appellant-Raju has suffered the maximum sentence prescribed u/S.304 Part-II IPC, Appellant Raju is directed to be released forthwith if not required in any other offence.

As regards the CRA.No.143/2009, the same is allowed in toto and the conviction and sentence of appellant Ghanshyam rendered by the trial Court in S.T.No.86/2008 on 22-12-2008 stands set aside. Appellant Ghanshyam be released forthwith if not wanted in any other criminal case or offence.