Mahesh & ANR. Vs.
State of Madhya Pradesh
O R D E R
1.
This
appeal is directed against the judgment and order dated 16.11.2007 passed by the
Madhya Pradesh High Court, Jabalpur Bench at Gwalior in Criminal Appeal No. 388
of 2001. By the aforesaid judgment and order, the Division Bench of the High
Court has not only confirmed the order of conviction and sentence of Shri
Ramdutt, who was convicted by the Trial Court under Section 302 of the Indian
Penal Code and sentenced him to undergo imprisonment for life and for 3 years rigorous
imprisonment under the Arms Act but also set aside the order of acquittal
passed by the Trial Court in the cases of Mahesh and Kanhaiyalal.
2.
The
High Court by passing the impugned judgment and order has convicted both the
aforesaid accused persons under Section 302 read with Section 34 of the Indian Penal
Code and sentenced them to undergo rigorous imprisonment for life. The sum and substance
of the aforesaid order of conviction and sentence is that all the three accused
persons have now been convicted under Section 302 read with Section 34 of the
Indian Penal Code and, therefore, all of them have been sentenced to undergo
rigorous imprisonment for life.
3.
The
prosecution story in brief is that on 1.11.1993, the complainant Badri Lal(PW
1) along with Rambabu (PW 3), son of deceased Kirori, went to their chilly
field to water the same. The said field was adjacent to the field of Mahesh and
Ramdutt who, at that point of time, were watering their field. When asked by the
complainant and Rambabu about watering their field, Mahesh and Ramdutt told
them that they can water their field only after watering of their field is
completed by them.
4.
It
is alleged that on hearing this, PW 1 and PW 3 came back to their village to go
back again in the afternoon, when while trying to release water to their field,
they were assaulted by Ramdutt and Mahesh. It is alleged that after the said
incident, Ramdutt and Mahesh came back running to the village and PW 1 and PW 3
also came behind them. When PW 1 and PW 3 reached the door, they heard the sound
of gunshot fire. On hearing the sound, they ran towards the said direction,
when on way, they saw Ramdutt and Mahesh running with guns in their hands. It is
alleged that when Ramdutt and Mahesh saw PW 3, Mahesh fired a gunshot at
Rambabu (PW 3) who saved himself by lying down. Thereafter, PW 1 and PW 3
reached in front of the door of Ramnarayan and Devi Prasad when PW 1 saw the
body of his younger brother Kirori, lying dead on the ground, being hit by a gunshot
which had hit him on chest and stomach. The body was surrounded by Deviprasad, Ramnath,
Kirori's wife Malti, Rambabu's wife Sunita and other members, daughters-in-law and
daughters.
5.
At
that stage, Malti told PW 1 that on hearing the news of altercation at the
field, Kirori was going towards the field when Ramdutt, Mahesh and Kanhaiya who
were standing at their door and that Ramdutt, with the licenced single barrel gun
of his father Kanhaiya, fired a shot at Kirori which had hit him near the
abdomen as a result of which Kirori fell down and died.
6.
The
First Information Report was filed by PW 1 at about 3.15 p.m. at the Police Station
which is 14 kms away from the village. On receipt of the First Information Report,
a criminal case was registered and the police started investigation, during the
course of which all the three accused persons were arrested. Charge-sheet was
filed as against all the three accused persons. Pursuant to filing of chargesheet,
trial was held during the course of which several witnesses were examined by the
prosecution. The defence also examined one witness in support of their defence.
The statements of all the three accused persons were recorded under Section 313
of the Cr P.C. and thereafter, the learned Trial Court, by the judgment and order
passed on 9.8.1999, convicted Ramdutt under Section 302 IPC and passed an order
sentencing him to life imprisonment and 3 years rigorous imprisonment under Arms
Act, respectively. So far as the other two persons are concerned, namely Mahesh
and Kanhaiya Lal, the present appellants, the Trial Court acquitted them on the
ground that there had been some embellishment in the prosecution case like the allegation
that the said accused persons holding the hand of the deceased at the time of firing
upon them by Ramdutt.
7.
Ramdutt
(A1) and the State filed appeals before the High Court. Both the said appeals were
taken up together and the same were disposed of by the common order by the High
Court whereby the High Court not only upheld the order of conviction passed against
Ramdutt but also passed a similar order of conviction and sentence as against Mahesh
and Kanhaiya Lal who were acquitted by the trial court.
8.
Being
aggrieved by the aforesaid order of conviction by the High Court, Mahesh and
Kanhaiya Lal, appellants herein, have filed the present appeal in which notice was
issued. So far as the Ramdutt - first accused is concerned, he has not filed any
appeal and, therefore, it appears that he has accepted the order of conviction and
sentence passed by the trial court and then, affirmed by the High Court. The present
appeal, therefore, relates to the order of conviction and sentence passed against
Mahesh and Kanhaiya Lal who are appellants before us.
9.
We
have heard the learned counsel appearing for the parties on this appeal who have
taken us through the entire evidence on record as also the contents of the two
judgments passed by the Trial Court and also by the High Court.
10.
The
contention that is raised by the learned counsel appearing for the appellants
is that in the First Information Report which was filed by PW 1 at the earliest
point of time after the incident, the role now attributed to the appellants herein
were not mentioned at all and, therefore, there could not have been an order of
conviction and sentence as against the two appellants. It was also submitted by
him that the statements of the alleged eye-witnesses were recorded by the
police after about 8 days of the occurrence and, therefore, there was enough
scope to make out a make believe story and also to put in an embellishment and
improvement relying on which the appellants are sought to be convicted.
11.
According
to the learned counsel appearing for the appellants, there were number of
independent witnesses who were allegedly present at the time of occurrence of the
incident, but none of them was examined and, therefore, the High Court should
have doubted the manner in which a specific role is being attributed to the appellants
herein. The learned counsel submits that there was no enmity between the parties
and, therefore, there was no motive for commission of the crime, at least by the
present appellants. He has also submitted that there are two versions which are
sought to be raised and, therefore, the benefit of the same should go to the
appellants herein.
12.
We
have considered the aforesaid submissions which were refuted by the learned counsel
appearing for the respondent. She has drawn our attention to the evidence on record
to submit that some of the translation of the deposition included in the paper book
prepared by the appellants is not truly reflecting the accurate statement made by
the persons in the Court.
13.
In
order to appreciate the aforesaid contentions, we have also examined the
original records and on such perusal, we find that some of the English
translations which have been placed before us by filing an additional paper book
are indeed not the true reflection of the statements made by the witnesses before
the Court.
14.
Be
that as it may, we would like to examine each of the contentions raised by the learned
Counsel appearing for the appellants in the light of the records. So far as the
first contention regarding informant not stating anything about the role of the
appellants in the First Information Report is concerned, we find that the aforesaid
First Information Report was submitted by PW 1 who was not an eye-witness to the
incident. Although it has come in evidence that he was informed about the incident
by PW 2, PW 4 and PW 5 immediately on his reaching the place of occurrence of the
incident, yet since he was not the eye-witness to the incident, he may not have
stated the said fact in the First Information Report for which it cannot be said
that the entire prosecution case should falter. Besides, it is an established
law that so far as the First Information Report is concerned, it is only a report
submitted informing the police about the commission of the crime. It is not
required that the said First Information Report should contain a detailed and vivid
description of the entire incident. Further, it cannot be expected from the informant,
especially, when the informant is a relative of the injured/deceased to give each
and ever minute detail of the incident in the First Information Report. Therefore,
PW 1 who had filed the information with the police not being an eye- witness, it
cannot be said that non mentioning about the role played by the present
appellants in the First Information Report would be in any manner fatal to the
case of the prosecution.
15.
So
far as the contention regarding recording of the statements by the police after
8 days of occurrence of the incident is concerned, a proper and appropriate
explanation has been given by the Police Officer, who recorded the statements,
stating that he had recorded the statements after about 8 days of the occurrence
of the incident because religious rituals were going on. Due to the aforesaid
reason, their statements could not have been recorded on 4.11.1993 which is also
written in the case diary. In that view of the matter and there being a
plausible and possible explanation given for recording the statements of eye- witnesses
after 8 days, the same cannot, in any manner, demolish or vitiate the
prosecution case.
16.
It
is also submitted by the counsel appearing for the appellants that there was no
enmity between the parties which could establish the motive for the commission of
crime. The said contention, on the face of it, is not acceptable for we find on
records that the present appellants and the informant had an altercation in the
field and because of the said altercation, the deceased came out of his house and
was going to the field during the process of which the aforesaid incident had
occurred wherein he was shot dead as alleged by the prosecution. Therefore, the
motive for the offence is established. There was an enmity between the complainant
party and the accused persons and, therefore, the aforesaid submission is found
to be baseless.
17.
The
prosecution has examined at least three eye-witnesses to the occurrence of the incident
who have stated as to how the incident had happened. They have also stated the
different and various role played by the accused persons. Since eye witnesses were
available and examined, there was no necessity of examining any other witness,
inasmuch as, there is no necessity for the prosecution to multiply witnesses to
prove and establish the prosecution case. There is no requirement in the law of
evidence that any particular number of witnesses is to be examined to prove something.
The evidence has to be weighed and not to be counted. The witnesses who were
examined were relatives of the deceased and, therefore, there is no ground and reason
why they should be disbelieved. There is also no reason why they would not
speak the truth so as to see that the actual guilty persons are convicted.
18.
It
is also submitted that there has been an improvement and embellishment in the prosecution
case and the role of the appellants have been exaggerated so as to see that all
the members of the family are punished and are sent to jail.
19.
In
order to appreciate the said contention, we have looked into the records. In fact,
we find that the English translation provided by the appellants in the additional
paper book of the evidence of PW-2 on the role of the appellants in the incident
alleged appears to be incorrect. Same is the case with the deposition of PW-4.
The statements made by the said witnesses regarding the alleged role of the present
appellants in the incident the English translation provided appears to be wrong.
In that view of the matter, we perused the original depositions of the two
witnesses which have been recorded in Hindi. On going through the same, we find
that PW2 and PW4 have specifically stated that the present appellants were
holding the deceased by his hands and also exhorted Ramdutt to bring the gun and
to shoot at the deceased. The aforesaid statements of giving exhortion and holding
the hand of the deceased and Ramdutt coming with the gun and fired at him are
corroborated. It clearly proves and establishes from the said fact that the present
appellants also had the common intention of killing the deceased. It is established
from the records that they had intentionally become a party to commit the murder
of the deceased.
20.
Section
34 of the Indian Penal Code provides that if two or more persons intentionally
do an act jointly, the position in law would be just the same as if each of them
has done the offence individually by himself. This doctrine of constructive criminal
liability is well-established in law. The very fact that the appellants were holding
the hand of the deceased and also at the same time exhorting Ramdutt to bring the
gun and to fire upon the deceased so as to kill him speaks volume and also prove
and establish that they have done the act intentionally so as to see that the
deceased is fired upon and shot dead.
21.
In
that view of the matter, we find no infirmity in the judgment and order passed by
the High Court setting aside the order of acquittal so far the present appellants
are concerned. We uphold the order of conviction and sentence passed against them
and dismiss the appeal.
22.
The
applications which are pending, are also disposed of in terms of the aforesaid
order.
...............
.............................J. (DR. MUKUNDAKAM SHARMA)
...............
.............................J. (ANIL R. DAVE)
NEW
DELHI
SEPTEMBER
13, 2011.
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