Ramsiya S/O Bhagirath vs State Of Madhya Pradesh

Sheel Nagu, J.

Criminal Appeal No.628/2008 arises out of the impugned judgment and order of conviction and sentence dated 11/7/2008 in S.T. No.173/2007 and

Criminal Appeal No.489/2012 arises out of the impugned judgment dated 23/5/2012 in the same Sessions Trial rendered by Shri Devraj Singh,

Additional Sessions Judge, Lahar, District Bhind and Shri Sanjeev Kumar Agrawal, Additional Sessions Judge, Lahar District Bhind (M.P.),

respectively, convicting the appellant Ramsiya in Cri. Appeal No. 628/08 for offence u/S. 302 IPC and Sec. 25(1-B)(A) of the Arms Act and

sentencing him to suffer life imprisonment with a fine of Rs. 3,000/- and two years R.I. with a fine of Rs. 1,000/- with default stipulation whereas the

appellant Bhagwan Singh in Cri. Appeal No. 489/2012 stands convicted for offence u/s. 302/34 IPC and sentenced to undergo life imprisonment with

a fine of Rs. 3,000/- with default stipulation.

Suffice it to say that initially the trial was proceeded against both the appellants together but appellant Bhagwan Singh absconded at the stage of

recording of his statement u/s. 313 Cr.P.C., and therefore the trial court proceeded with the trial only against appellant Ramsiya and recorded the

impugned judgment dated 11/7/2008 in S.T.No.173/2007 whereas on the basis of the same set of evidence recorded earlier in the case of appellant

Ramsiya, the absconded appellant Bhagwan Singh (Cri.Appeal No. 489/2012) after being nabbed was proceeded and the impugned judgment dated

23/5/2012 in the same Sessions Trial was recorded as indicated above.

CONTENT & CONTEXT

Brief facts giving rise to the prosecution case is that on 12/6/2007 Agyaram Tripathi (PW-2), the complainant alongwith Ramsahai (PW-3) lodged

the FIR (Ex.P/2) that the complainant, deceased Ramesh Chandra Sharma and Rameshwar Chauhan were heading on their respective bicycles

towards Kaksi Mandir, Itoda.

When these three neared the Fountain Puliya, they saw both the appellants coming from behind and stopped the deceased Ramesh Chandra, abused

him on the issue of the deceased having signed the sale-deed as an attesting witness and therefore exhorted that the deceased should be put to an end.

At this moment, appellant Ramsiya took out his country-made pistol and shot the deceased who died on the spot. After lodging of the FIR as aforesaid

which was registered as Crime No. 50/07 for commission of offence punishable u/s. 302/34 IPC against both the appellants and completion of

necessary formalities, charge sheet was filed and the case was committed to the Court of Sessions where charges were framed. The appellants

abjured guilt and sought trial.

In the trial Court, apart from tendering and proving documentary evidence, the prosecution examined as many as 11 witnesses, namely, Manoj Jain

(PW-1), Agyaram (PW-2), Ramsharan (PW-3), Ramnivas Sharma (PW-4), Rameshwar Dayal (PW-5), Dr. Jitendra Shrivastava (PW-6), Satish

(PW-7), Jahar Singh (PW-8), Ramswaroop (PW-9), Ajay Bhargav (PW-10), and Bhagirath (PW-11) out of whom PW-2 Agyaram and PW-5

Rameshwar Dayal are the eye-witnesses. The defence produced DW-1 Bhagirath to support the plea of past animosity and false implication between

the deceased and the complainant.

The undisputed facts and the circumstances which have come on record are that the FIR (Ex.P/2) was lodged promptly within 30 minutes of the

incident by the complainant Agyaram (PW-2) where he narrated the incident but did not specify as to which appellant exhorted the other or whether

both the appellants together exhorted for terminating the life of the deceased which thereafter led to the appellant Ramsiya inflicting fatal firearm

injury upon the deceased. The postmortem was conducted on 12/6/2007 at 11-45 a.m., by Dr. Jitendra Shrivastava (PW-5) opining the cause of death

to be syncope due to excessive haemorrhage resulting from gunshot injury. The injury found on the dead-body was a single gunshot entry wound

situated over the back of chest near T-11 vertibral with tattooing present around the wound which led to piercing the organs of the thoracic cavity

including lungs and heart. Thereafter exit gunshot wound was also found on the anterior wall of the chest on left side . Besides the aforesaid, the

postmortem report also found a lacerated wound, skin deep situated lateral to right eye-brow. The contents of the postmortem report (Ex.P/8) are

proved by Dr. Jitendra Shrivastava (PW-6) who testified that the gunshot injury found on the dead-body was sufficient to cause death having been

caused within 6 hrs. of the examination. PW-6 further testified that only one gunshot injury on the dead-body causing entry wound and exit wound

was found. No metallic objects were found embedded and also that looking to the entry inflicted at the back of the deceased, the attack was made

from the rear of the deceased.

The Trial Court, after considering the evidence adduced on record and considering the testimony of eye-witnesses PW-2 Agyaram and PW-5

Rameshwar convicted and sentenced the appellants herein in the manner reflected supra.

From the above it is obvious that the death of the deceased Ramesh Chandra was homicidal.

CONTENTIONS

Learned counsel for the appellants doubting the probative value of the testimony of PW-2 Agyaram and PW-5 Rameshwar, who are eye-witnesses

to the incident submits thus:-

8.1 The testimony of PW-2 Agyaram inter alia discloses that the appellant Bhagwan Singh made exhortation that since deceased Ramesh Chandra

had testified the sale-deed for alienation of land he (Ramesh Chandra) should be put to an end whereafter other appellant Ramsiya inflicted fatal

gunshot injury. This revelation made in the testimony by PW-2 Agyaram is found missing in the FIR (Ex.P/2) which was lodged by the same

complainant PW-2 Agyaram. It is submitted by the counsel that FIR merely discloses omnibus allegation of exhortation without attributing the same to

any particular appellant and therefore it is urged that PW-2 has improved his earlier version thereby rendering his testimony before the court

untrustworthy.

8.2 It is further submitted by the appellants that the cycle on which the deceased was travelling was not recovered by the prosecution which renders

the prosecution story doubtful.

8.3 As regards the testimony of PW-5 Rameshwar (eye-witness), appellants submit that PW-5 Rameshwar being an eye-witness did not disclose

before the court about the deceased being an attesting witness in the sale-deed alienating the land which was the motive behind the crime. It is further

submitted that appellant Ramsiya caused gunshot injury from a distance of 2-3 feet which fact is belied by the circumstantial evidence of presence of

tattooing but absence of blackening found around the injury in the postmortem report.

8.4 The testimony of PW-5 is further attacked on the ground that he failed to disclose the shape, physical feature and type of the firearm used to

cause fatal injury.

8.5 Learned counsel for the appellants states that no independent witness was examined as both the eye-witnesses PW-2 Agyaram and PW-5

Rameshwar are somehow related to the deceased and therefore their testimony cannot be accepted in the absence of corroboration by independent

witness.

8.6 It is further urged that PW-9 Ramswaroop one of the witnesses to the arrest-memo Ex.P/9 of the appellant Ramsiya and Ex.P/10 of the appellant

Bhagwan Singh has turned hostile and therefore arrest having not been proved renders the prosecution story unreliable.

8.7 No pellets or bullets or its' pieces were found in the dead-body or recovered from the spot which further belies the prosecution story.

On the other hand, learned Public Prosecutor for the State supported the impugned judgment of conviction and sentence and states that there is

enough material on record to establish the common intention behind the offence to hold the appellant Bhagwan Singh guilty of the act of murder

committed by the appellant Ramsiya. It is submitted that both the appellants came together on the cycle and therefore even if there is no overt act on

the part of the appellant Bhagwan Singh but the fact of their coming together and fleeing together from the spot immediately after committing the

crime has rightly been found to establish sharing of common intention to commit the murder of deceased Ramesh Chandra.

ANALYSIS

Taking up the case of appellant Ramsiya in Cra. No.628/08 who has caused fatal gunshot injury, it is seen that the FIR (Ex.P/2) was promptly

lodged within 30 minutes of the incident at police station Daboh, District Bhind (M.P.), revealing that when deceased Ramesh Chandra alongwith

complainant Agyaram  (PW-2) and Rameshwar Chauhan on different cycles were going towards the temple, both the appellant on cycle came from

behind and overtook them and reached the deceased where the exhortation was made (without specifying as to who made exhortation) whereafter

the appellant Ramsiya inflicted fatal gunshot injury to the deceased causing his instantaneous death.

10.1 The appellant-Ramsiya was accordingly arrested by arrest-memo (Ex.P/9) in the presence of two witnesses, namely, Devi Singh and

Ramswaroop (PW-9). On disclosure made by appellant Ramsiya, the offending weapon .315 bore country-made pistol was recovered alongwith one

live round and cycle in the presence of witnesses Devi Singh and Ramswaroop. The Forensic Report (Ex.P/12) in regard to the firearm opined that

the recovered and seized firearm is operational and found to have been used and that the same can be used for causing fatal firearm injury. The live

cartridge recovered and seized was opined to be capable of being fired by the said seized firearm. The Forensic Report Ex.P/12 is duly proved by

PW-10 Ajay Bhargava.

10.2 The diary statement of Agyram, PW-2 u/S. 161 Cr.P.C. (Ex.D/1) was recorded on 12/6/2007 narrating the incident in the same manner as

narrated in the FIR (Ex.P/2) with omnibus allegation of exhortation and without specifying as to which appellant actually made the exhortation.

10.3 The testimony of PW-2 Agyaram and PW-5 Rameshwar both eye-witnesses has been attacked on the ground of certain embellishments,

contradictions and omission when compared with earlier version of the prosecution story as detailed above. In the considered opinion of this court, the

omissions in sec. 161 Cr.P.C. statement of PW-2 Agyaram of specific allegation of exhortation against any particular appellant, stands to the benefit

of appellant Bhagwan Singh who had not caused fatal gunshot injury and against whom no overt act is alleged except accompanying the main accused

Ramsiya. However, this omission can be of no avail to the appellant Ramsiya who was found to have caused gunshot injury which version in the diary

statement has been duly supported by the testimony of PW-2 Agyaram and PW-5 Rameshwar with minor inconsequential omissions, contradictions

and embellishments which can very well be ignored.

10.4 As regards PW-5 Rameshwar, the other eye-witness, it is seen that this witness has testified before the court and supported his earlier version in

regard to the overt act of the appellant Ramsiya of causing gunshot injury to the deceased but has stated on oath that it was appellant Bhagwan Singh

who exhorted by uttering abusive words and shouting that deceased Ramesh Chandra should be shot in response to which appellant Ramsiya shot the

deceased. Pertinently, PW-5 who testified before the court as eye-witness was not subjected to any 161 statement during investigation as none is on

record though in para 8 of his cross-examination PW-5 stated that his statement was recorded by the police during investigation. PW-5 has also

testified that while heading towards temple deceased Ramesh Chandra on cycle was leading the other two (PW-2 and PW-5) and he himself (PW-5)

was at the end. PW-5 Rameshwar testified that both the appellants came on the same cycle and overtook them from the left. PW-5 Rameshwar also

deposed that Bhagwan Singh was riding bicycle and appellant Ramsiya was sitting behind on the carrier.

10.5 As regards the appellant Bhagwan Singh is concerned, admittedly there is no overt act against him of causing any injury except the fact that he

may have exhorted appellant Ramsiya to shoot the deceased which led to the appellant Ramsiya to cause gunshot injury. The factum of the appellant

Bhagwan Singh having exhorted cannot safely be concluded in view of the inconsistencies regarding this allegation between the contents of the FIR

(Ex.P/2) and the testimony of the complainant PW-2 Agyaram. The testimony of PW-5 Rameshwar in regard to the exhortation also stands on the

same footing as that of PW-2 Agyaram and therefore a doubt raises as to which of the two appellants actually exhorted the other to cause gunshot

injury. The possibility of the principal appellant Ramsiya actually making the exhortation immediately before causing fatal injury could not be ruled out

by the prosecution, which in the considered of this court has to be read in favour of the appellant Bhagwan Singh.

10.6 From the testimony of the above said two eye-witnesses, namely Agyaram (PW-2) and Rameshwar (PW-5), the picture that emerges is that

there is sufficient cogent evidence in support of the allegation of murder against appellant Ramsiya. The ocular evidence in shape of PW-2 Agyaram

and PW-5 Rameshwar is dully supported by the medical and as well as other corroborative evidence and there is nothing on record to compel this

court to discard the same except few minor contradictions, embellishments and omissions which deserve to be ignored.

10.7 Another aspect which deserves consideration is the implication of the appellant Bhagwan Singh with the aid of Sec. 34 IPC. The conviction of

the appellant Bhagwan Singh u/S. 302 IPC is solely founded upon the concept of common intention found in Sec. 34 IPC.

10.8 To establish any offence with the aid of Sec. 34 IPC the principal aspect is of meeting of minds to share the common intention to commit the

offence which may crystallize either prior to or during the course of the incident between 2 or more assailants.

10.9 In the instant case, there is nothing on record which may reflect any meeting of minds between the two appellants prior to the incident. The

common intention can also arise during the course of the incident therefore on analyzing the incident herein it is evident that the appellant Bhagwan

was riding the bicycle and the appellant Ramsiya was sitting on the carrier and when they reached near deceased Ramesh Chandra appellant

Ramsiya pulled out a country-made pistol and shot the deceased. The prosecution has not brought on record any direct or indirect evidence to show

that the appellant Bhagwan Singh had knowledge of appellant Ramsiya carrying firearm. The circumstances disclose that the appellant Ramsiya

suddenly pulled out the firearm and shot the deceased. In the absence of any evidence attributing knowledge to appellant Bhagwan Singh about the

appellant Ramsiya hiding the firearm in his clothes, the all important element of meeting of minds between the two appellants for causing murder of

the deceased appears to be conspicuously missing.

10.10 The Apex Court in the case of Willie (William) Slaney Vs. State of Madhya Pradesh (AIR 1956 SC 116) has succinctly elaborated the

connotation and parameters of the concept of “common intention†to encompass cases involving active participation in the commission of the

crime, meeting of minds prior to or during course of incident and while doing so, the Apex Court has emphasized the subtle but palpable distinction

between “similar intention†and “common intention†by sounding a word of caution that both ought not to be understood to be synonymous. In

the instant case, the appellant Bhagwan Singh may have had similar intention but the existence of common intention to kill the deceased gets excluded

by the absence of all important element of meeting of minds between the two appellant and also the absence of knowledge that appellant Bhagwan

knew that appellant Ramsiya was hiding country-made postal in the clothes, which was abruptly pulled out to shoot the deceased. Some of the Apex

Court decisions explaining the concept of “common intentionâ€​ are extracted below:-

In the case of Willie (William) Slaney (supra) 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 createany 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.â€​

(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. ….â€​

In the case of Anil Sharma & Ors. Vs. State of Jharkhand reported in AIR 2004 SC 2294 the Apex Court has held as under :-

“Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not

create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence

committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of

a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such

intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring

home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of

mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of

moment; but it must necessarily be before the commission of the crime. …...â€​.

10.11 A coordinate bench of this court in the case of Smt. Sushila & others Vs. Stae of M.P. (Criminal Appeal No. 956/14) decided on 5/10/2017

after considering the aforesaid decisions of the Apex Court pertaining to S. 34 IPC had acquitted the appellant therein of the offences which were

found to be proved only with the aid of Sec. 34 IPC.

Learned counsel for the appellants also relies on the decision of the Apex Court in the case of Malkhan Singh and another Vs. State of Uttar

Pradesh (AIR 1975 SC 12) to emphasize that in the attending facts and circumstances therein which were similar to the factual matrix herein, no

overt act on the part of appellant Bhagwan Singh is attributed by merely riding the bicycle and therefore the provision of Sec. 34 IPC are not

attracted. The relevant para 7 of the said judgment is reproduced below for ready reference and convenience :-

“7. The fact that the companion of accused o whose cycle the accused was sitting, continued to pedal the cycle after the accused fired pistol and

that he too ran away with the accused would not necessary go to show that the shot had been fired in furtherance of common intention of the two.

The companion therefore could not be held vicariously liable.â€​

From the above discussion and analysis of the material and evidence on record, this court is of the considered view that the appellant Ramsiya in

Cri. Appeal No. 628/08 (Jail Appeal) has rightly been found guilty of the offence of murder of deceased Ramesh Chandra and therefore the impugned

judgment dated 11/7/2008 in S.T.No.173/07 convicting the appellant Ramsiya for offence u/S. 302 IPC and Sec. 25(1-B)(A) of the Arms Act and

sentencing him to suffer life imprisonment with a fine of Rs. 3,000/- and two years R.I. with a fine of Rs. 1,000/- with default stipulation by Shri

Devraj Singh, Additional Sessions Judge, Lahar, District Bhind calls for no interference and is upheld.

As regards appellant Bhagwan Singh in Cr. Appeal No. 489/2012, this court is of the considered view that since the all important element of

common intention u/S. 34 IPC is found not established beyond all reasonable doubt, the appellant Bhagwan Singh cannot be convicted for the act of

murder committed by appellant Ramsiya with the aid of Sec. 34 IPC. Consequently, the impugned judgment dated 23/5/2012 in S.T.No.173/2007

rendered by Shri Sanjeev Kumar Agrawal, Additional Sessions Judge, Lahar District Bhind (M.P.) convicting the appellant Bhagwan Singh for

offence u/s. 302/34 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 3,000/- is set aside. The appellant Bhagwan Singh is on

bail. He need not surrender. His bail bonds and surety bond are discharged.

As a sequel to above discussion, Cri. Appeal No. 628/08 (Jail Appeal) preferred by the appellant Ramsiya stands dismissed by maintaining

conviction and sentence recorded against him for offence u/S. 302 IPC and Sec. 25(1-B)(A) of the Arms Act for life imprisonment with a fine of Rs.

3,000/- and two years R.I. with a fine of Rs. 1,000/- whereas Cri. Appeal No.489/2012 preferred by the appellant Bhagwan Singh is allowed by

setting aside his conviction and sentence u/S. 302/34 IPC.

A copy of this judgment be sent to the trial court concerned alongwith the record of this case for information.