Girraj vs State of Madhya Pradesh

G.D. Saxena, J.—Aforesaid three appeals have been preferred by the accused/appellants u/s 374 of the Code of Criminal Procedure 1973, having been aggrieved by a Judgment dated 29th March, 2004 in Special S.T. No. 124/02 by the Fifth Additional Sessions Judge/Special Judge (Dacoity), Gwalior, holding thereby all of the accused guilty for causing murder of Vishnu Mangal in furtherance of their common object, which is an offence punishable u/s 302/34 of I.P.C. and sentenced to suffer imprisonment for life with a fine of Rs. 5,000/-each and on failure to deposit fine, rigorous imprisonment of 3-3 years was awarded to them. For having possession of firearms and ammunitions without proper and valid license, the accused have further been held guilty for commission of offence punishable u/s 25 (1B)(a) and 27 of the Arms Act and sentenced to suffer two years'' R.I. with a fine of Rs. 1,000/-each and again two years'' R.I. with a fine of Rs. 1,000/-each and on failure to pay fines, additional rigorous imprisonment of 6-6 months was imposed on both the counts.

The brief facts, necessary for the disposal of these appeals, are that on 24th July 2002, at around 12, in the noon, Vishnu Mangal (Jeweller) started proceeding with his servant Chimmanlal (Munim) on a motorcycle from his house to his jewellery''s shop, situated in Sarafa Market at Morar. When they reached near Agrawal Dharmshala Gangamai Santar, the traffic was blocked due to lying building material i.e. Concretes (Gitti) and parking of the tractor on the road. In such a situation, Vishnu Mangal had to alight from the motorcycle. He went on foot alone up to his Jeweller''s shop. As soon as he reached in front of Mahesh General Stores, some unknown miscreants fired at him resulting he fell down and died on the spot. On information to his brother Sanjay Mangal, he reached on the spot and found profuse bleeding from the head of the injured. He with the help of neighbors and bystanders shifted the injured to a nearest K.D. Hospital Morar. The doctors of the Hospital seeing the condition of injured, immediately referred him to a J.A. Group of Hospitals. In J.A. Hospital, the concerning doctor, after examination of the injured declared him dead. Complainant Sanjay Mangal thereafter lodged the F.I.R. (Ex.P/35) and Marg Intimation Report vide (Ex.P/34) at the Police Station Morar. The police in its turn came and prepared the spot-map vide Ex.P/1 and seizure-memo (Ex.P/3) of the blood stained and simple soil, alongwith empty cartridges and one case of Spects belonging to deceased Vishnu Mangal. Also prepared the memo of dead body in the hospital. Counter of FIR was sent on next day to the concerning Magistrate, having the territorial Jurisdiction. Case-diary statements of eye-witnesses and other material witnesses were recorded. All the accused were arrested and on their informations, the weapons and the cartridges used in the incident, blood stained clothes belonging to accused and deceased apart from diary, mobile phone and cash etc. etc. were seized from the possession of the accused. The weapons and other articles were chemically examined by the Ballistic Experts of the Forensic Science Laboratory. After getting sanction to prosecute the accused u/s 39 of the Arms Act by the Additional District Magistrate, the charge-sheet was submitted to the criminal court. On committal, the trial Judge, after trial convicted and sentenced the accused, as mentioned above, hence, these appeals on their behalf.

The grounds taken by the appellants herein for assailing the judgment of conviction and sentence may be capitulated as under:

(i) that, the impugned judgment of conviction and sentence is perverse to the facts as came out of the evidence during trial and the law applicable to the present case;

(ii) that, the prosecution utterly failed to prove the guilt against the present accused/appellants;

(iii) that, as per prosecution version there was a grave enmity over purchase of a particular property in between one Paras Jain, who stood acquitted by the trial Judge after trial and deceased Vishnu Mangal. It is alleged that Paras Jain hired the killers for killing Vishnu Mangal;

(iv) that, except the present accused, others involved in conspiracy in the present incident were acquitted by the trial Judge, hence, the entire prosecution story raises suspicion;

(v) that, on the basis of unreliable eye-witnesses'' account, the accused can not be convicted for the charges framed against them; and lastly

(vi) that, the material and eyewitnesses are closely related and servant of the deceased, therefore, without supportive independent evidence, those can not be believed.

On the basis of the above submissions, it is prayed that by allowing the appeals, the accused/appellants be acquitted of the alleged offences. Learned counsel for appellants placed reliance on the following decisions:

(i) Jainul Haque Vs. State of Bihar, .

(ii) Harchand Singh and Another Vs. State of Haryana, .

(iii) Vithal Laxman Chalawadi and etc. Vs. State of Karnataka rep. by P. Prosecutor, .

(iv) Yasin Gulam Haider Vs. State of Maharashtra, .

(v) Ganesh Bhavan Patel and Another Vs. State of Maharashtra, .

(vi) Vijender and Others Vs. State of Delhi, .

(vii) Ramesh and others Vs. State of Madhya Pradesh, .

(viii) Idrish Dadu Bhai Vs. State of Gujarat (AIR 2005 SC 1067.

(ix) Eknath Ganpat Aher and Others Vs. State of Maharashtra and Others, .

Per contra, opposing the prayer of the appellants, the learned Additional Advocate General assisted by his respective learned colleagues, supported the impugned findings of conviction and sentence recorded by the trial court. He contended that the prosecution case is fully supported by the eye-witnesses, whose presence on the spot was natural in visualizing the incident. He stated that merely on the basis of minor contradictions and omissions brought on record before the court during cross-examination of the witnesses, the entire prosecution case can not be discarded. He submitted that the eye-witnesses identified participation of all the accused in the crime and the ocular version is fully supported by the medical witnesses which also get strength from the recovery of the weapons used in the incident and the report of the Ballistic Experts. It is stated that the latches, if any, committed on the part of investigation that would not affect the entire prosecution case, which otherwise proves the guilt of the accused beyond all reasonable doubts. Accordingly, it is prayed on behalf of the State as well as complainant that by dismissing the appeals of the accused, the judgment of conviction and sentence passed by the trial Judge may not be disturbed. They placed reliance on the following decisions:

(i) Ranjeet Singh & others Vs State of MP (2011) 4 SCC 326.

(ii) John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, .

(iii) Sidhartha Vashisth @ Manu Sharma Vs. State (NCT of Delhi) (2010)1 SCC 01.

(iv) State of Rajasthan th. Secy. Home Dept. Vs. Abdul Mannan, .

(v) Umesh Vs. State of Maharashtra (2007)15 SCC 393.

(vi) Prithi Vs. State of Haryana, .

(vii) Girish Yadav Vs. State of MP 1997 (2) JLJ 157.

(viii) State of Rajasthan Vs. Bhawani and Another, .

Heard the learned counsels for the parties at length and also perused the record of the trial Judge and the law applicable to the case at hand.

The questions for consideration in these appeals are whether the learned trial Judge has misread the evidence in arriving at the conclusion of the guilt and the findings recorded suffer from the material irregularity, which may affect the results of the case or the impugned judgment of conviction and sentence is proved and well founded on the proper appreciation of the evidence that has come on record before the trial Judge ?

Chimmanlal Sharma (PW-1) deposed that on the day of incident, he was working as an Accountant ''Munim'' at Jewellery''s shop of the deceased, situated at Morar. At about 9 a.m., he attended the Jewellary''s shop. At around 11-30 a.m., he received a call from his owner who asked him to go for recovery of arrears from defaulters. As he was departing for recovery, Sanjay Mangal, brother of deceased Vishnu Mangal told him to meet his brother first before proceeding on the mission. He stated that when he reached at the residence of Vishnu Mangal, situated in front of Narcotic Office Morar, Vishnu Mangal was ready who asked him to drop to his Jeweller''s shop. So, the witness accompanied him on his motorcycle as a pillion-rider from his house for going to the Jeweller''s shop. As they reached near Gangamai Santar, they found the heap of building material "Gitti" and the tractor trolley standing on the road, which were creating obstruction in the traffic. At that juncture, Vishnu Mangal though to alight from the motorcycle and so he asked his Munim to go for recovery leaving him at the place. When the witness moved and looked behind him, he saw accused Raju Kankar and Girraj Ghuraiya standing nearby the heap of material on the red coloured motorcycle and just ahead to them, accused Sonu Shroti and Ballu were also standing on another black coloured motorcycle. He deposed that when he moved further, he heard the noise of crackers, but he overlooked presuming that the children were playing with the crackers. While returning back, at about 12 p.m., he was told by the persons of the locality that Vishnu Mangal was murdered and he was shifted to the hospital. So, he reached in the J.A. Hospital, Gwalior where he saw his dead body. In para 3 of his statement, he stated that when he went back to Gangamai Santar, he saw the police on the spot. The police was preparing the spot map. Just after half an hour, he was told by Sanjay Dandotia and Vipul Gupta that Bablu and Sonu shot dead Vishnu Mangal. He deposed that near about three months ago of the incident, Raju Kanker through him purchased the jewellery from Vishnu Mangal, worth Rs. 70,000/-on credit, which amount was due over him on the day of incident. Police prepared spot-map vide Ex.P/1. The police also seized one case of the Spects belonging to the deceased apart from blood stained and simple soil from the spot and two fired bullets with two empty cartridges. In cross-examination, he stated that his case-diary statement was recorded within an hour from the incident and by that time he did not disclose as to who caused the incident.

Sanjay Mangal (PW-21), brother of the deceased Vishnu Mangal deposed that on 24th July 2002, he and Munim Chhimmanlal Sharma reached at his Jeweller''s shop. At about 11-30 a.m., Vishnu Mangal told him on phone that before going for recovery of arrears from defaulters, Chhimanlal may be asked to meet him at his residence. Thereafter, Chhimman left on his motorcycle. At about 12 or 12.30 p.m., one person came to him and informed that Vishnu Mangal was shot dead by someone else. As he reached, he found Vishnu Mangal lying injured on the spot and the blood was oozing. Then, he immediately shifted him to K.D. Hospital Morar in a car of Pradeep Agrawal. After seeing condition, Dr. Sharma, In-charge of K.D. Hospital advised him for shifting his brother to J.A. Group of Hospitals where ultimately his brother was declared dead. After placing the dead body of his brother in the mortuary room of J.A. Hospital, he rushed to the Police Station Morar and lodged the F.I.R. vide Ex.P/35. Police reached on the spot and prepared spot map (Ex.P/1). By that time, Vipul Gupta and Sanjay Dandotia reached on the spot and they told him that Ballu and Sonu fired by their country-made pistols and accused Girraj and Raju with country-made pistols were also present on the spot, at a some distance. He stated that Raju Kankar and Sonu Shroti were closely related to each other. He stated that near about three months ago, accused purchased the ornaments worth Rs. 70,000/-on credit and on demand, accused was not paying the credit amount. In para 5 of his statement, he stated that on return from Morar, he met with Sumit Bansal, who informed him about the incident. In cross-examination, he deposed that just after the incident Mukesh Verma (PW-15) also informed about the incident at his shop.

Thus, it is proved that these witnesses are not the eye-witnesses of the incident but are material witnesses of the incident. Though these witness are related but they are neither interested nor inimical witnesses. In other words they proved them as reliable material witnesses of the incident.

Smt. Mamta (PW-2), stated that she used to earn from selling the vegetables on the hand cart, just near the place known as Gangamai Santar Morar. She deposed that near about 7-8 months ago on dated 24th, at about 12 a.m. when she came back after urination to her place of business, she saw two accused Ballu and Sonu Shroti present on the spot, having pistols in their hands and when Vishnu Mangal just passed in front of them, accused Sonu and Ballu fired one-one shots towards him. Consequently, he fell down and said why they were firing at him. She further stated that by that time Girraj and Raju Kankar having pistols in their hands came on the spot and they were saying to kill him. Thereafter, all the four accused ran away on their motorcycles. Many persons visualized the incident. Brother of Vishnu Mangal came after the incident and shifted the injured in a car to the hospital. She identified accused Raju and Ballu at first instance and Girraj on indication by Public Prosecutor. In cross-examination, she categorically said that accused Raju used to collect the tax of Municipal Corporation from vegetable vendors regularly and accused Ballu also used to accompany him. So, she was well acquainted with accused Raju and Ballu prior to the incident. She further stated that at least, four bullets were fired at Vishnu Mangal. Police recorded her statement on second day of the incident. She also categorically stated that she knew Vishnu Mangal, whose Jeweller''s shop is situated at the place in front of which she put her vegetable cart for selling the same. In her detailed cross-examination, there is nothing to doubt on her statement. She was not only an eye witness examined by the prosecution but was also an independent witness too of the incident.

Sumit Bansal (PW-29), the nephew of deceased deposed that on 24th July 2002 at about 12 hours in noon, when he was going from Sadar Bazar to Gagamai Santar, he saw Vishnu Mangal going on foot towards his jeweller''s shop. From his back side, one Hero Honda motorcycle (Splendor) of black coloured came on which Sonu and Ballu were sitting. They parked their vehicle and thereafter accused Ballu took out his pistol and fired at Vishnu Mangal. Accused Sonu then also fired at the injured by his pistol. First bullet hit towards the waist while second hit towards left hand from back side. Consequently, the injured fell down in front of the General Merchant shop of one Mahesh Jain, at Ganga Mai Santar. Then, he fled away from the spot and rushed to the shop of Vishnu Mangal but there he did not find available anybody except one servant. He asked the servant about Sanjay Mangal. He told that Sanjay Mangal had already went to the spot. When he again returned back to the spot, he was informed by the nearby persons that Sanjay Mangal had shifted Vishnu Mangal to K.D. Hospital. When he reached in the Hospital, he came to know that Vishnu Mangal was referred to Madhav Dispensary at J.A. Hospital. He also went to Madhav Dispensary where he was informed that Vishnu Mangal was declared dead and his dead body was shifted in the Mortuary Room. He returned back to his home and informed the incident to his family members. He stated that at about 4-30 p.m. in Shanti Vatika, he met Sanjay Mangal to whom he narrated the whole incident. In cross-examination, he categorically stated that prior to incident accused Ballu and Sonu were introduced by Amit Jain but he had no friendly terms with accused Ballu and Sonu. This witness was cross-examined at length and there is nothing to create doubt on his testimony. His case-diary statement was recorded at 10 p.m. in night in the house of Vishnu Mangal.

Devendra Rana (PW-3), a Constable posted in the Police Station, Morar deposed that on 24th July 2002 at about 12 hours in noon, he was going with his two children to drop them to their school from Gangamai Santar to Sarafa Bazar. He saw that Sonu Shroti and Ballu Ghuraia were going with pistols in their hands on one motorcycle towards Maal road. Behind them, accused Raju Kankar and Girraj Ghuraia were also proceeding on another motorcycle with pistols in their hands. Raju was driving the motorcycle and Girraj was sitting as a pillion rider. On return from school, he heard that those four accused fired at Vishnu Mangal. He informed the incident to In-charge of the police Station and also chased the accused through mobile van but could not hold of them. As per his court statement, he is a chance witness, who saw the four accused going on two motorcycles with pistols in their hands on public way, just before the incident. He was cross examined at length and there is nothing to discard his statements regarding the incident.

Similarly, Rajendra Jain (PW-13), Mukesh Verma (PW-14) and Virendra Kumar Mathur (PW-27) deposed that on the day of incident they heard the sound of gunshots and they also saw Vishnu Mangal lying on the spot with oozing blood from the wounds. However, these witnesses were, later on, declared hostile by the prosecution, as they were remote about involvement of the accused in the commission of crime.

Pradeep Agrawal (PW-36) deposed that one year before the incident, at about 12-30 hours in the noon, as he came out of his office, he saw that Vishnu Mangal was lying injured on account of receiving gunshot injuries by the miscreants. On request of Sanjay Mangal, he made available his car for shifting his brother Vishnu Mangal to the Hospital. He also accompanied with them and reached in the K.D. Hospital. Dr. K.G Sharma, after examining Vishnu Mangal declared him dead.

Dr. J.N. Soni (PW-4) at the relevant time was working as Professor and Head in the Forensic Medicine Department in the G.R. Medical College/J.A. Group of Hospitals, Gwalior. He deposed that on 24th July, 2002 at about 1-45 p.m. he conducted autopsy on the body of Vishnu Mangal, S/o Durgaprasad Saraf, resident of Morar. The dead-body of the deceased was brought by a Constable No. 689 of Police station Morar, namely, Shravan Kumar which was identified by the deceased''s brother Sanjay Mangal. During examination, he found the following antemortem firearm injuries over the dead body :

(i) Entry Gunshot wound anterior to the left ear admeasuring 6 cm. x 5 cm., vertical lower margin having impression of muzzle inward, 1.5 x 0.5 semicircular in shape.

Exit wound situated 4 cm. anterior to the right ear, 0.8 cm. in diameter, Entry wound extends to exit wound after damaging skull bone brain, base of skull facial bones. Direction left to right above downwards posterio anteriorly;

(ii) Gunshot gutter wound present on 6 cm. below the right elbow 3 cm. long and 1 cm. deep, surrounded by tattooing in 15 cm. x 6 cm. vertical area, posterior laterally on abdomen. Direction of fire left to right in same place;

(iii) Gunshot entry wound present on back in mid line 14 cm. below the 7th cervical, 2 cm. x 0.5 cm. vertical surrounded by tattooing all around for 0.4 cm. width. It extends in mussels and damaging part of 8th thoracic vertebra superficially. Depth of wound was 0.5 cm.;

(iv) Gunshot entry wound situated 1cm. above the ilia-c crest, laterally 1.5 cm. x 1 cm. obliquely placed. It enters in the abdominal cavity after damaging muscles, peritoneal and intestine cavity, a bullet was recovered from belvie cavity. Direction of fire was left to right downwards anteriorly. The bullet was long soft nose one.

On dissection of the body, the scalp, brain and spine were found damaged. The doctor opined that the cause of death was due to shock and haemorrhage which was direct result of multiple injuries caused by firearms. All the injuries were sufficient to cause death of the deceased in the ordinary course of nature. Duration of death was within 6 hours from the time of postmortem. Death was homicidal in nature. The doctor preserved the viscera, part of bullet recovered from the body, clothes of the dead body, which were sealed and handed over for further chemical examination to the Constable who brought the body. The said postmortem report is Ex.P/4, written and signed by him. In cross-examination, the doctor confirms that the four firearm injuries as mentioned above in his report (Ex.P/4) may be caused by one or different of same type of firearm weapons from different distances.

Dr. K.G. Sharma (PW-34) deposed that near about one year at around 1 p.m., he examined Vishnu Mangal, whose body was brought on a stretcher to his Hospital. He found profuse bleeding coming from head and chest of the injured and on examination of pulse, he declared the injured dead. Then dead-body of the deceased was shifted by the crowd.

In the light of the discussions on the medical evidence, it appears that deceased Vishnu Mangal was died on the spot and after examination by Dr. K.G. Sharma of K.D. Hospital Morar, he declared him dead. Thereafter, the dead-body was shifted to Madhav Dispensary of J.A. Hospital, Gwalior and was placed in the Mortuary House of the Hospital itself. On the request-memo of Police Station, Morar, Dr. J.N. Soni (PW-5) conducted autopsy and opined that four firearm injuries were caused by one or different firearms which were the cause of death of deceased Vishnu Mangal on the spot.

M.L. Verma (PW-42) Inspector and In-charge of the Police Station Morar deposed that on 24th July 2002 he wrote the F.I.R. (Ex.P/34) and the Marg Intimation Report (Ex.P/35) on oral report by witness Sanjay Mangal (PW-21) against unknown miscreants. Thereafter on spot he prepared the spot map (Ex.P/1) and seizure-memo (Ex.P/3) and seized the blood stained and simple soil from the spot, two empty cartridges and two rounds of 315 bore firearm from the spot. On that day, he recorded statements of the eye-witness Vipul Gupta and Sanjay Dandoitia and the case diary statements of the rest of the witnesses were recorded on the same or subsequent dates, during investigation and during inquiry from the local residents of the spot, he came to know about the culprits causing the incident. He sent the counter part of F.I.R. through Constable.

He further deposed that on 28th July 2002 he arrested accused Raju vide arrest memo (Ex.P/28) and after arrest on inquiry, accused Raju informed about the article used in the crime. A memorandum (Ex.P/29) was prepared and accordingly, one motorcycle Honda Passion vide seizure memo (Ex.P/30) was seized. On 2nd August 2002, accused Ballu surrendered before the criminal court at Gwalior and was taken into custody. On his information, the memorandum (Ex.P/31) was prepared and accordingly, one diary in torn condition with two railway platform tickets was seized near from the road side of Katoratal, at Gwalior vide seizure memo (Ex.P/32). On 4th August 2002, on inquiry from accused Ballu, during custody, as per memorandum (Ex.P/52) at the behest of the accused from house of Mantu Sharma at village Kariawati, he seized vide Ex.P/53 one country-made pistol of 315 bore marked as Article-A/2, one used empty cartridge in the barrel of country-made pistol with four live cartridges, cash of Rs. 2650/-one half shirt of blue and yellow colour and one paint of blue colour. On 2nd August 2002, accused Sonu Shroti was arrested and on 4th August 2002, on inquiry he informed about cash of Rs.2000/-,one country-made pistol. Accordingly, a memorandum (Ex.P/39) was prepared. On 4th August 2002, he again made an inquiry and accused Raju Kankar informed him under custody about cash of Rs. 1500/-and one country-made pistol. Accordingly, he prepared memorandum and seized cash and country-made pistol marked as Article-A/3 vide seizure memo (Ex.P/55). On 10-8-2002, he after arrest of accused Girraj, inquired him about the weapon of crime and accordingly prepared memorandum (Ex.P/50) and on production, the weapon, i.e., country-made pistol from his house at village Parsen was seized. All the seized articles including firearms in sealed clothe-cover were kept in a safe-custody of the Police Station till their dispatched for examination by the Firearms Expert of Forensic Science Laboratory. All the articles seized from the spot and the J.A. Group of Hospitals including the weapons seized from the possession of the accused with cartridges were then sent for chemical examination. Report of the Firearm Expert is Ex.P/25 on the record.

On perusal of the reports of Firearm Expert of the State Forensic Science Laboratory Sagar, it appears that a country-made Pistol (Article A-4) from accused Girraj Ghuraia, on an information furnished vide memorandum (Ex.P/56) was recovered from his house at Parsen and as per the report of the Expert, dated 24th January 2003 same was in a workable condition. On an information, a country-made pistol (Article A-3), 315 bore with two live cartridges was recovered from accused Raju Kankar @ Rajesh at his house in village Alori P.S. Gohad district Bhind vide seizure-memo (Ex.P/55). On an information, a country-made pistol (Article A-2) with one fired cartridge Article-N in a barrel with four cartridges was recovered vide seizure-memo (Ex.P/52) at the behest of accused Ballu Guraia from house of Mantu @ Santosh Sharma at village Karayawati. On an information, a country-made pistol (Article A-1), a weapon 315 bore, in workable condition with two live cartridges from accused Sonu was recovered from the spot and the cartridges marked as EC-1 and EC-2 fired by this pistol were also recovered from the accused. The presence of nitrate was seen which denoted that all the weapons were used in firing but definite period of firing could not be ascertained. As per the report of the FSL, the empty cartridges marked as EG to EC-5 and TC''s (A/2) on examination were reported to have been fired by the weapon marked as Article-A/2. Similarly cartridges marked as EG, EC-3 and TC''s (A/1) were reported to have been fired by the weapon marked as Article-1. The eleven live cartridges marked as LR-1 to LR-11 were reported that they can be fired by the weapons marked as A/1, A/2, A/3 and A/4. Further, on examination of the blood stained Kurta (Article-G) and Baniyan (Article-C/2) belonging to deceased Vishnu Mangal were found having wholes of firing shots with presence of nitrate cased by bullets EB/ 1 to EB/3.

On perusal of the Chemical Examiner''s report (Ex.P/ 71) it indicated the presence of human blood on the shirt of accused Sonu Shroti marked as Article-M.

B.M Sharma (PW-39) deposed that at the relevant time he was posted as an Additional District Magistrate, Gwalior. On that date on production of the seized weapons from the accused and on perusal of the case-diary papers couple with the reports of the Firearm Experts, he accorded permission to prosecute the accused under the Arms Act for commission of offence punishable under Sections 25 (1B) (a) and 27 of the Arms Act. In cross-examination, he admitted that the country-made pistols were produced under the seizure chits and not in a sealed clothe-covers. The sanction permission given u/s 39 of the Arms Act bears his signature.

Now, we would examine whether the conviction of the appellants u/s 302 with the aid of Section 34 of I.P.C. by the trial court is sustainable in law or not ?.

For an inference of common intention being drawn for the purpose of Section 34 of I.P.C., the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas have taken place amongst different accused and in prosecution of it the overt acts of the accused persons had flowed out as if in obedience to the command of a single mind.

In the case of Mrinal Das Vs. State of Tripura (2011) 9 SCC 429, the Apex Court held:-

Section 34 IPC read 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 is liable for that act in the same manner as if were done by him alone,"

The reading of the above provision makes it clear that the burden lies on the prosecution to prove that the actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concept. Further where the evidence did not establish that particular accused has dealt blow the liability would devolve on others also who were involved with the common intention and such conviction in those cases are not sustainable.

A clear distinction made out between common intention and common object is that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is substantial difference between the two sections namely, Section 34 and Section 149 IPC,to some extent they also overlap and it is a question to be determined on the facts of each case.

There is no bar in convicting the accused under substantive section read with Section 34 if the evidence discloses commission of an offence in furtherance of the common intention of them all. It is also settled position that in order to convict a person vicariously liable u/s 34 or Section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts in order to apply Section 34, apart from the fact that there should be two or more accused. Two facts must be established namely (a)common intention (b) participation of accused in the commission of an offence. It requires a prearranged plan and presupposes prior concept. Therefore there must be prior meeting of minds. It can also be developed on the spur of the moment but there must be prearrangement or premeditated concept.

In Dharnidhar Vs. State of U.P. and Others, it is held:-

There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24)

In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the court in support of the prosecution''s story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so-called "interested witnesses" cannot be relied upon by the court.

In the present case, the circumstances are such that we cannot find any error in the concurrent findings of fact recorded by the trial court, as well as by the High Court that these two witnesses were present at the respective places and had actually seen the occurrence. Their statements about gunfires,as well as the injuries caused by the kulhari and spear respectively are duly supported by the medical evidence, as well as by the statements of the investigating officers. Thus, we find that the contention raised on behalf of the appellants is liable to be rejected.

Be that as it may, it is not always necessary for the prosecution to establish a definite motive for the commission of the crime. It will always be relatable to the facts and circumstances of a given case. It will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence. It is not correct to say that absence of motive essentially results in the acquittal of an accused if he is otherwise found to be guilty. In Babu Lodhi v. State of U.P., this Court took the view that insofar as the adequacy of motive is concerned, it is not a matter which can be accurately weighed on the scales of a balance.

However, in cases which are entirely or mainly based upon and rest on circumstantial evidence, motive can have greater relevancy or significance (Babu Lodhi and Prem Kumar case). But it is equally true that when positive evidence against the accused is clear in relation to the offence, motive is not of much importance. Mere absence of motive, even if assumed, will not per se entitle the accused to acquittal, if otherwise, the commission of the crime is proved by cogent and reliable evidence.

It is a settled principle of law that to show common intention to commit a crime it is not necessary for the prosecution to establish, as a matter of fact, that there was a pre-meeting of the minds and planning before the crime was committed.

In Surendra Chauhan v. State of M.P. this Court held that common intention can be developed on the spur of the moment. Also, u/s 34, a person must be physically present at the place of actual commission of the crime. The essence is the simultaneous consensus of the minds of persons participating in the criminal act and such consensus can be developed on the spot.

It is not mandatory for the prosecution to bring direct evidence of common intention on record and this depends on the facts and circumstances of the case. The intention could develop even during the course of occurrence. In this regard reference can be made to Ramaswami Ayyangar v. State of T.N. and Rajesh Govind Jagesha v. State of Maharashtra.

In other words, to apply Section 34, two or more accused should be present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 moreover, involves vicarious liability and therefore, if intention is proved but no overt act is committed, the section can still be invoked. In the present case all the four accused had gone together armed with three guns and one spear and after shouting, making their minds clear, had fired at Bahadur Singh causing gun injuries and spear injury on his shoulder.

What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention. The common intention or the intention of the individual concerned in furtherance of the common intention can be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.

Now, on reverting to the facts and evidence adduced before the trial Judge, it appears that witness Chimmanlal Sharma (PW-1) stated that he dropped the deceased from his motorcycle but after going ahead on seeing the obstruction on the road, the deceased alighted from the vehicle and started going on his foot to the place of destiny. He narrated the story prior to the incident, but he did not state to have witnessed the occurrence of killing deceased by the accused. Therefore, though, he is related to the deceased but he appears to be natural and reliable witness. Likewise Sanjay Mangal (PW-21), being brother of the deceased is related witness but his statement that after information he reached on the spot and saw his brother Vishnu Mangal in an injured condition and thereafter he shifted his injured brother in a Maruti car of one Pradeep Agrawal to K.D. Hospital and on referral to J.A. Groups of Hospital Gwalior, same versions cannot be doubted. On the contrary, it proves him as an independent and unbiased witness. It is true that after incident he tried his best to save life of his injured brother and was indulged in shifting him to the nearest hospital but when his injured brother was declared dead by the doctor, he reached the Police Station Morar and lodged the FIR against unknown miscreants, which goes to indicate his natural conduct. Thus, veracity of the F.I.R. is not affected adversely. Even as per the version of Smt. Mamta (PW-2), a vegetable vendor, her presence seems to be natural on the spot. According to her, she used to sell the vegetables on movable cart at the place which work had been continuing for a considerable time. She stated that the accused Sonu and Bablu were known to her as they generally came to collect the municipal tax/charges from her.Sumit Bansal (PW-29) who is the nephew of deceased, at the relevant time, was passing through the way and thus he had an occasion to visualize the incident from his own eyes. He had no enmity with the accused and seems to be a chance/eye-witness. He deposed that on 24th July, 2002 at about 12 hours in the noon he was going from Sadar Bazar to Gagamai Santar when he saw that Vishnu Mangal was going to his Jeweller''s shop. From his back side one Hero Honda motorcycle (Splendor) came on which accused Sonu and Ballu were sitting. They parked the vehicle nearby the water tap at Gangamai Santar. Then, accused Ballu and Sonu Shroti fired two shots which hit the deceased on his back and left hand. Apart from the above, in their court statements, Mamta (PW-2) and Sumit Bansal (PW-29) clearly indicated involvement of the accused Girraj and Raju. Devendra Rana (PW-3) who was also a chance witness confirms that all the above accused were seen going towards the spot on two motorcycles having firearms. Thereafter, the incident took place. The eye-witnesses had identified the assailants of the deceased. It was broad daylight and there could be no question of mistaken identity. Thus, ocular evidence confirms the happening of the incident of killing Vishnu Mangal on the spot by the accused who went there on motorcycle ''Hero Honda Passion red coloured which was seized from accused Raju and another motorcycle ''Hero Honda Splendor Black coloured bearing Registration No. M.P. 07 KE 5207 which was seized from accused Ballu Ghuraia by the Investigating Officer M.L. Verma (PW-42). Further, the ocular evidence gets well support from the medical evidence of Dr. J.N. Soni (PW-4), who in his statement and P.M. report (Ex.P/4) confirms that the four firearm entry wounds with one exist wound were responsible for causing death of Vishnu Mangal. The report of the Firearms Expert also proves the firings made by the country-made pistol recovered from the accused. Hence, eye-witness account in this case is perfectly in harmony with the medical evidence. The seats of the injuries taken together with the manner and the weapons of assault clearly indicate that intention to kill was there on the part of the accused-appellants. Hence, the criticism against the eye-witnesses made by the learned counsel for the appellants is wholly unmerited when judged in correct perspective and in a dispassionate manner. As a matter of fact, the eye-witnesses account of the incident which, as we said, is consistent with the medical evidence.

Thus, on careful scrutiny, the testimony of the eye-witnesses is found to be trustworthy which could not be castigated on any ground whatsoever. Chimanlal Sharma (PW-1) also appeared to be a truthful witness when he said that he had only seen the accused persons at certain distance. He spoke only what he saw with his own eyes as otherwise as he could pose to be an eyewitness of the incident. Nothing of the kind was done by him.

Judging independently, on the basis of other evidence, not the slightest doubt is left on the evidence of eye-witnesses. Therefore, the situation boils down to this that neither the criticism against the eyewitnesses account nor against the other evidence is capable of being upheld.

In view of the above discussion, our conclusion is that the prosecution in this case has established the guilt of the appellants to the hilt by clinching and satisfactory evidence rendered. The eye-witnesses account is also in perfect harmony with medical evidence. The accused were acting in concert with previous meeting of minds. The offence was committed with premeditation. The intention to cause death of deceased Vishnu Mangal was absolutely there. Therefore, the accused-appellants have been rightly convicted u/s 302 read with Section 34 of I.P.C. and again for offence punishable under Sections 25 (1B)(a) and 27 of the Arms Act. All the three appeals, namely, criminal appeal Nos. 225/2004, 243/2004 and 270/2004 are without merit and are dismissed.

Nothing stated herein shall be taken as an expression on merits as regards Criminal Appeal No. 746/10 preferred by another accused/appellant Sonu Shroti arising out of the impugned judgment dated 22nd July, 2010, which would be decided separately.