Mukesh Sharma & Mithlesh vs State Of Madhya Pradesh

S.A. Dharmadhikari, J

Since both the appeals arise out of the common judgment regarding the same incident, they have been heard and are being decided by this common

judgment.

The present appeals filed under Section 374(2) of the Code of Criminal Procedure assail the judgment of conviction and sentence dated 06/04/2005

passed in S.T. No. 65/2002 by which the appellants have been convicted under Section 302/34 of IPC and sentenced to suffer Life Imprisonment with

fine of Rs. 5000/- each and under Section 457 of IPC to undergo R.I for three years with fine of Rs. 250/- each.

The appellants have been convicted for murder of deceased Ramniwas son of Sampatiya bai in an incident which took place on 22/04/2001 at about

3.30 pm. It is an admitted fact that co-accused Rajputa @ Pradeep and Kehri @ Khaihain have died in an police encounter.

According to the prosecution, a complaint was lodged by Sampatiya mother of the deceased Ramniwas on 22/04/2001, that at about 3.30 pm the

deceased Ramniwas was admitted at the Public Health Centre, Jaura as he had suffered injuries due to old enmity with the Brahmins of Narhela who

had assaulted him. During that time, accused Rajputa, Kehri, Mukesh and Mithilesh (present appellants) armed with Axe, Barchi, Lathi and Gun came

on the spot. All the four accused came shouting “ekj Mkyks lkys dks] cpus u ik;s \ Rajputa pushed Sampatiya and gave a blow by Axe to

Ramniwas which resulted in injury on his chin. As Ramniwas shouted, Rajputa gave a second blow on his chest which resulted in his death. After the

incident all the four accused fled away from the spot.

On lodging of F.I.R. by the complainant Sampatiyabai (P.W.4), criminal law was triggered and set into motion, investigation agency arrived at the

spot, prepared the Panchnama of the dead body and sent it for post-mortem; recorded the statement of the witnesses; prepared the spot map; arrested

the appellants and the weapons which were used for commission of the offence were recovered at the behest of the accused and also the blood

stained clothes were seized and sent to chemical examination.

After investigation was over, the charge sheet was submitted in the committal court, which in turn, committed the case to the court of Sessions,

from where it was received by the trial court for its trial.

The learned trial Court framed charges which were denied by the appellants, who claimed to be tried. Appellant Mukesh produced the witness

Nandkishore in his defence whereas the appellant Mithilesh did not produce any evidence in support of his defence. The sessions Court on the basis of

evidence adduced before it, convicted and sentenced both the appellants under various counts as mentioned above. Being aggrieved, the appellants

have filed the instant appeals.

Learned counsel for the appellants primarily contended that PW4 Sampatiya Bai and PW7 Bhuribai have been examined as eye-witnesses. It is

submitted that PW7 Bhuribai has not supported the prosecution version. From perusal of her evidence, it appears that she is only a hearsay witness

who cannot be relied upon. In pararagraph 2 of her examination-in-chief, she has stated that she had not seen Mukesh earlier but saw him on the date

of incident. She further stated that Mukesh had inflicted two Axe blows on the body of Ramniwas, which is contrary to the version narrated in the

FIR. It is submited that in view of such contradictions, no credence can be attached to the testimony of so called eye-witnesses and a serious doubt is

created with regard to the presence of the appellants on spot at the time of incident. It is submitted that there are material contradictions and omissions

in the evidence of PW4 Sampatiya Bai vis-a-vis her statements recorded under sections 161 and 164 of the Cr.P.C. It is submitted that PW3 Dr.

Himanshu Sharma who conducted the post mortem found three old injuries over the body of the deceased which were not caused by sharp cutting

object, which goes to show that deceased was of criminal bent of mind and was involved in various illegal activities.

On behalf of appellant Mithilesh it is submitted that he had not actively participated in commisson of crime, as is apparent from the FIR. The allegation

against him is that he was armed with a Gun, but no gunshot injury has been found on body of the deceased. It is submitted that the main accused is

Rajputa who had caused the injury. The so called eye-witness PW4 Sampatiyabai is an interested witness having enmity with the family members of

the appellant who are prosecution witnesses against her family members in a case under section 307, IPC. Test Identification Parade of the appellant

has not been conducted. There was darkness at the spot, as such it was not possible for the prosecution witnesses to establish his presence on the

spot with veracity. No overt act has been attributed to the appellant. As such his conviction with aid of section 34 of the IPC is bad in law and liable to

be set aside.

Per contra learned Public Prosecutor has drawn our attention to the reasoning assigned by the trial Court and to the deposition of PW3 Dr.

Himanshu Sharma, PW Sampatiya Bai and PW7 Bhuri Bai, to contend that all the four accused persons were involved in the commisson of offence,

as a result of which multiple injuries were received by Ramniwas, as is evident from the post mortem report. It is submitted that the intention of the

appellants is apparent from the ocular as well as medical evidence and, as such, the trial Court has not committed any error in convicting the

appellants with the aid of section 34 of the IPC. With the aforesaid submissons, it is submitted that the appeal is liable to be dismissed.

We have heard learned counsel for the parties and perused the evidence on record.

Before adverting to the aspect of marshalling of evidence, it would be appropriate to delineate the injuries found on the body of the deceased. As

per postmortem report (Ex.P/6) prepared by Dr. Himansh Sharma (P.W.3), following injuries were found on the body of the deceased Ramniwas :-

(i) Semi healed stitched 3.5 cm long wound over left frontal region of scalp.

(ii) Semi healed stitched 1.5 cm long wound over lower 1/3rd of right arm (posteriorly) .

(iii) Semi healed stitched wound 1.5 cm long over the medial surface of lower 1/3rd of right leg.

(iv) Incised wound size 11 cm x 4.5 cm x 4 cm up to bone deep filled with blood extending from mid of the chin to 2 cm below the angle of mandible

with left side of neck. All around the wound muscles and tissues are cut. Lower margin of mandible cut into multiple fragments.

(v) Incised wound 9 cm x 0.5 cm x muscle deep extending from midline in front of the neck towards left side obliquely placed.

(vi) Incised wound obliquely placed 12cm x 5.5 x 9 cm deep up to the body of the 7th cervical vertebra extending from middle of the supraclavicular

fossa of right side cutting the sternomastoid muscle right and midline of the neck up to the left sternoclavicular joint (joint is cut). Underlying structures

are cut. Trachea fully cut and seperated. Right carotid artery and vein, superior venacava cut. Body of the 7th cervical vertbera is cut. Wound is filled

with clotted blood.

Injury No. (i), (ii) and (iii) were in healing process, hence object of the injuries can not be explained and duration of these injuries was within four days.

Injury Nos. 4,5 and 6 were caused by sharp and cutting object. Death within 24 hrs. The injuries were anti mortem in nature.

The post mortem report (Ex.P.16) reflecting the aforesaid injuries which stands proved by (P.W.3) Dr. Himanshu Sharma.

PW4 Sampatiya Bai, who is the complainant as well as eye witness to the incident, in her examination-in-chief has categorically deposed that 3-4

days prior to the incident, Rajputa, Mukesh, Khairi and Mithlesh had assaulted her son Ramniwas with Lathis and sustaining injuries, Ramniwas had

been admitted to hospital. At about 3-3.30 a.m., when she and PW7 Bhuri Bai were sitting in the hospital besides Ramniwas who was sleeping on a

cot, co-accused Rajputa, Khairi and present appellants Mukesh and Mithilesh came there. Khairi was armed with Luhangi, Mukesh with a Bhala,

Rajputa with an Axe and Mithilesh was armed with a Gun. All of them exhorted to kill Ramniwas and Rajputa dealt an Axe blow on his chin and

another one on his chest. Blood started oozing. All of them pushed the complainant and fled from the spot. In paragraph 5, she has categorically

deposed that an agricultural field had been purchased by her some 15-20 years back and from last 1-2 years the accused persons were demanding the

same. They used to extort donation from the entire Village and lived like goons. In her cross-examination in paragraph 16 also, she has narrated about

giving of Axe blow by co-accused Rajputa and further stated that Mukesh, Khehri and Rajputa had pushed her. In paragraph 17 of her cross-

examination she has deposed that Bhuri Bai had not escorted her to the Police Station and was sleeping. Initially she deposed that Bhuri Bai had not

seen the incident as she was sleeping, but in the very next breath she deposed that Bhuri Bai had awakened after a blow of Axe was given by the

miscreants and she had also shouted, but could not stand as she is an old woman.

PW-7 Bhuri Bai in her examination-in-chief has deposed that appellant Mukesh was also present on the spot, who was armed with an Axe and

had wielded two Axe blows on Ramniwas. In her cross-examination, she has deposed that she was not aware of the names of miscreants. In

paragraph 6 of her cross-examination she has deposed that she awoke when the miscreants were fleeing after pushing Sampatiya. She saw them

going out of the hospital and was informed by Sampatiya that the accused persons had killed Ramniwas. She further deposed that she had also seen

the accused persons wielding Axe. In paragraph 8 she again reiterated that she had seen the miscreants fleeing from the spot and was informed by

Sampatiya.

PW-3 Dr. Himanshu Sharma who conducted the post mortem examination has categorically deposed that injury nos. 1 to 3 were in healing

process, therefore, it was not possible to ascertain the weapon of offence. He further deposed that injury nos. 4 to 6 were caused by sharp cutting

object and were ante mortem injuries caused within 24 hours of post mortem examination. He found the death to be homicidal in nature.

PW-1 Dalit Khan who is Ward Boy, though has beendeclared hostile, yet has admitted that he had seen blood oozing from the neck of Ramniwas

when he visited the room and two women were crying. Similar deposition has been given by PW2 Yashvant Shakya who was the Compounder. The

other prosecution witnesses who have turned hostile, are not the material witnesses. Thus, from the evidence of aforesaid witnesses, the presence of

the appellants on the spot and their complicity in the offence is duly proved. PW4 Sampatiya Bai, who is the eye-witness and complainant, has been

examined and cross-examined in detail. She has supported the prosecution version and categorically narrated the role of the appellants in commission

of crime. Similarly Bhuri Bai has deposed about assault on deceased from right side, which is corroborated by medical evidence.

It has been argued by learned counsel for the appellants that the main thrust of allegations by the complainant is on co-accused Rajputa and the

appellants were not actively involved in the offence, hence their conviction with the aid of section 34 of IPC is bad in law and is liable to be set aside.

In this regard reliance has been placed on decision of the Apex Court in the case of Mithu Singh Vs. State of Punjab ((2001)4 SCC 193), wherein

acquittal was recorded on the premise that appellant who was armed with a pistol did not share common intention to kill the deceased who was shot at

by the co-accused.

However, the present case is clearly distinguishable on facts, inasmuch as in the present case all the accused persons had gone to the hospital and

all of them exhorted each other to kill the deceased and in pursuance of such exhortation, the fatal blow was given by co-accused Rajputa. Thereafter,

all of them fled together pushing the complainant. Thus, common intention to kill Ramniwas was very much present since their arrival in the hospital.

The case of Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1) is a locus classicus and has been followed in a large number of cases. In

this case, the Judicial Committee dealt with the scope of section 34 dealing with the acts done in furtherance of the common intention, making all

equally liable for the results of all the acts of others. It was observed:

......the words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34

includes a series of acts and, further, `act' includes omissions to act, for example, an omission to interfere in order to prevent a murder being done

before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission

of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as

he stood outside the door, it is to be remembered that in crimes as in other things 'they also serve who only stand and wait'. By Section 38, when

several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read

together, these sections are reasonably plain.Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in

furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the

latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. Section 37 provides that,

when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in

the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence.

Section 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged

or concerned in the commission of a criminal act are set in motion by the one intention or by the other.

(emphasis supplied)

In Krishnan & Another. v. State of Kerala (1996) 10 SCC 508, the Hon'ble Apex Court, even assuming that one of the appellants had not caused

the injury to the deceased, upheld his conviction under Section 302/34 of the Penal Code holding:

Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal

Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in

question. Question is whether overt act has always to be established? I am of the view that establishment of a overt act is not a requirement of law to

allow section 34 to operate inasmuch this section gets attracted when ""a criminal act is done by several persons in furtherance of common intention of

all"". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind

regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where

the proved facts would themselves speak of sharing of common intention: res ipsa loquitur.

(emphasis supplied)

In Surendra Chauhan v. State of M.P. (2000) 4 SCC 110, the Hon'ble Apex Court Court held that apart from the fact that there should be two or

more accused, two factors must be established - (i) common intention; and (ii) participation of the accused in the commission of the offence. If a

common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious

liability. Referring to its earlier judgment the Court held:

Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the

offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution

of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds

of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by

all of them. Ramaswami Ayyangar v. State of T.N. (1976) 3 SCC 779) The existence of a common intention can be inferred from the attending

circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention

even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of

an occurrence.

(Rajesh Govind Jagesha v. State of Maharashtra (1999) 8 SCC 428). To apply Section 34 IPC apart from the fact that

there should be two or more accused, two factors must be established"" (i) common intention, and (ii) participation of the accused in the commission of

an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves

vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every

case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.

In Gopi Nath @ Jhallar v. State of U.P. (2001) 6 SCC 620 it was observed as under:

..... As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be

kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of

the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by

plurality or persons who jointed together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of

them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render

each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not overt or

was only covert act or merely an omission constituting an illegal omission. The Section, therefore, has been held to be attracted even where the acts

committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged

themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur

of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the

common intention could 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.

(emphasis supplied)

The Apex Court in the case of Virendra Singh Vs. State of M.P. ((2010)8 SCC 407) held that

“40. The dominant feature of section 34 is the element of intention and participation in action. This participation need not in all cases be by physical

presence. Common intention implies acting in concert.â€​

Thus in view of the aforesaid judicial pronoucements, in the attending facts and circumstances of the case, no illegality has been committed by the

trial Court in convicting and sentencing the appellants, as it is well established from the evidence on record that the appellants had gathered at the spot

with premeditation and had acted in unison and concert in fulfilling their common intention of doing away with the deceased.

The appeals fail and, are, accordingly dismissed. Appellant Mukesh Sharma in Criminal Appeal No. 287/2005 is on bail. His bail bonds are cancelled.

Appellant Mukesh Sharma is directed to surrender immediately before the Trial Court, so that he be sent to the jail for execution of the remaining jail

sentence.

A copy of judgment be also sent to the trial Court along with the record for information and to prepare the supersession warrant of appellant Mukesh

Sharma and to get sentence executed by him.

A copy of this judgment be retained in the connected appeal.