Sec.302 read with Sec.34 of IPC -
whether entitled for benefit of doubt - No -
once it has been established and proved by the prosecution that all the accused came at the place of incident with a common intention to kill the deceased and as such, they shared the common intention,
in that case
it is immaterial whether any of the accused who shared the common intention had used any weapon or not and/or anyof them caused any injury on the deceased or not.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.293 OF 2022
State of M.P. ..Appellant(S)
Versus
Ramji Lal Sharma & Anr. ..Respondent(S)
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 13.12.2018 passed by the High
Court of Madhya Pradesh, Bench at Gwalior in Criminal
Appeal No.339 of 2006, by which, the High Court has
allowed the said appeal and has acquitted respondent No.1
and 2 herein – original accused No.1 and 3, for the offences
punishable under Section 302 read with Section 34 of the
IPC, by giving benefit of doubt, the State of Madhya Pradesh
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has preferred the present appeal.
2. As per the prosecution case sometime prior to 8:30 in the
morning of 17.01.2002, one Devendra, son of Bhagirath,
brother of deceased Munshilal, went to the house of
accused Ramjilal for demanding money for grinding of
wheat in the flour mill and accused persons Mukesh (A4)
and Brijesh (A3) met him. When Devendra demanded
money, then, accused No.3 and accused No.4 assaulted him
with kicks and punches. Somehow, he rescued himself. The
said incident was brought to the notice of the complainant
Laxminarayan. The brother of Devendra, namely, Ramgopal
and father Bhagirath, went to the house of accused persons
for enquiring about the scuffle. All the accused were going
towards the house of the deceased Munshilal. While seeing
them, the cousin brother of deceased namely Laxminarayan
also reached the door of Munshilal. The accusedMukesh
was carrying 12 bore double barreled firearm, accusedKallu
Brijkishore was carrying 12 bore single barreled firearm and
accused Brijesh alias Sadhu alias Brijnandan and Ramjilal
were carrying axe. At that time, the deceased was returning
after urinating in Goda of Ramswaroop. All the accused
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persons surrounded him. AccusedRamjilal hit with the axe
on Munshilal, which was obstructed and held by the
deceased and thereafter, accused Mukesh fired from his
firearm. The accusedKallu also fired from his firearm. The
deceased Munshilal fell down in the Goda of Ramswaroop.
The entire incident was seen by eye witnesses including the
original complainant – Laxminarayan (PW1). When
Laxminarayan, Devendra and Surender put Munshilal on
the Cot (charpai) to take him to the Police Station but
Munshilal died while he was being taken to the Police
Station. The complainant Laxminarayan got recorded the
First Information Report of the incident in the morning at
9:20 against all the four accused for the offences punishable
under Sections 302, 307, 34 of IPC and Section 3(2)(v) of the
Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act. The Investigating Officer initiated the
investigation and recorded the statements of the witnesses.
He prepared the punchnama. He collected the post mortem
report/medical evidence. After conclusion of the
investigation, the Investigating Officer filed a chargesheet
against all the accused for the offences punishable under
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Sections 302, 307 and 34 of the IPC and Section 3(2)(5) of
the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act. As the case was exclusively triable by the
Court of Sessions, the case was committed to the Court of
Sessions. The accused pleaded not guilty and therefore, all
of them came to be tried by the learned Trial Court for the
aforesaid offences.
3. To prove the case, the prosecution examined five eye
witnesses including PW1, PW3 and PW5. The prosecution
also examined Dr. R.K. Taneja as PW6. The Investigating
Officer was also examined by the prosecution. After closure
of the evidence on the side of the prosecution, further
statements of accused under Section 313 of Cr.PC were
recorded. Their case was of total denial. That thereafter, on
appreciation of evidence on record oral as well as the
documentary, the learned Trial Court held that all the
accused shared the common intention to kill the deceased.
On appreciation of evidence on record, the learned Trial
Court held all the accused guilty for the offences punishable
under Section 302 read with Section 34 of the IPC and
sentenced all the accused to undergo life imprisonment with
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a fine of Rs.5,000/ each.
3.1 Feeling aggrieved and dissatisfied with the impugned
judgment and order of conviction the accused preferred
Criminal Appeal No.339/2006 before the High Court. By the
impugned judgment and order, the High Court has allowed
the appeal preferred by respondent No.1 and 2 herein –
original accused No.1 and 3, by giving them benefit of doubt
and by observing that there is a contradiction in the ocular
and the medical evidence and therefore their presence itself
is doubtful.
3.2 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court acquitting
respondent No.1 and 2 herein – original accused No. 1 and
3, by giving them benefit of doubt, the State has preferred
the present appeal.
4. Having heard learned counsel appearing on behalf of the
respective parties at length and on going through the
impugned judgment and order passed by the High Court, it
appears that while acquitting the accused the High Court
has observed in paragraph 14 as under:
“14. After hearing the arguments and going through the
record, two things are apparent; one, involvement of
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appellant No.1 Ramjilal Sharma and Appellant No.3
Brajmohan @ Kallu is not made out as ocular evidence is not
corroborated by medical evidence given by Dr. Taneja (P.W.6)
and secondly, as far as appellant No.2 Brijkishore Sharma @
Kallu is concerned, in view of specific finding given by Dr.
R.K.Taneja (P.W.6), that cause of death was homicidal and it
occurred because of injury in femoral artery as well as gun
shot injury in lungs, it can not be said that femoral artery is
not a vital organ. Thus, it is apparent that Kallu shared
common intention, whereas presence of appellant No.1 and 3
is doubtful. Therefore, appellants No.1 and 3 should have
been extended benefit of doubt which has been wrongly
denied by the trial court. When no independent witnesses are
examined and medical evidence is not corroborated by the
prosecution story, then conviction was reversed as held by
the Hon'ble Supreme Court in the case of Lilia Vs. State of
Rajasthan as reported in (2014) 16 SCC 303. Therefore, this
court finds that this is a fit cases to record acquittal in favour
of appellants No.1 Ramjilal and No.3 Brijnandan @ Brijesh
Sharma. As far as conviction of appellant No.2 under Section
302 with the aid of Section 34 of IPC is concerned, it is clearly
made out.”
Except the above findings/reasoning no other findings
are recorded by the High Court.
4.1 From the impugned judgment and order passed by the High
Court, it appears that what has weighed with the High
Court is that there is discrepancy in the ocular evidence as
well as the medical evidence and/ or the ocular evidence is
not corroborated by the medical evidence and therefore, the
presence of accused No.1 and 3 is doubtful. According to
the High Court, eye witnesses PW1, PW3 and PW5 stated
that accused No.1 and 3 were having axe in their hands,
they attacked the deceased by their axe, however, as per the
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medical evidence no such injury by axe is found. However, it
is required to be noted that PW1, PW3 and PW5 are all eye
witnesses to the incident and they are believed so far as the
other accused are concerned. It is also to be noted that right
from the very beginning of filing/lodging the FIR the names
of all the accused were disclosed. Accused No.1 and 3 were
also named in the FIR. All the eye witnesses are common in
saying that accused No.1 and 3 also came along with other
accused. Therefore, their presence has been established and
proved by the prosecution. Even on going through the
deposition of PW1, his case was that Ramjilal – accused
No.1 first hit Munshilal with an axe which was caught by
Munshilal with his hand. If that be so naturally there could
not be any injury on the hand of Munshilal. Even PW5, who
is also one of the witnesses, has also deposed and stated
even in crossexamination that Ramjilal hit axe and that
Munshilal caught head of axe, therefore, axe could not hit
Munshilal. Therefore, as such it cannot be said that there
are any material contradictions in the ocular and the
medical evidence of which benefit of doubt should be given
to the accused.
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4.2 Even otherwise once it has been established and proved by
the prosecution that all the accused came at the place of
incident with a common intention to kill the deceased and
as such, they shared the common intention, in that case it
is immaterial whether any of the accused who shared the
common intention had used any weapon or not and/or any
of them caused any injury on the deceased or not.
4.3 As such the learned Trial Court in paragraph 35 gave
specific findings on the common intention shared by all the
accused to kill the deceased. However, the High Court has
not at all considered the aforesaid vital aspect of the case.
The High Court has also not discussed and/or reappreciated the entire evidence on record and has acquitted
accused No.1 and 3 by simply observing that there are
contradictions in the ocular and medical evidence, and
therefore the presence of accused No.1 and 3 is doubtful
and therefore, they are entitled to the benefit of doubt. As
observed hereinabove as such there are no material
contradictions between the ocular and medical evidence.
The presence of all the accused have been established and
proved and the prosecution has also been successful in
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proving that all the accused including accused No.1 and 3
shared the common intention. Therefore, as such the
learned Trial Court rightly convicted all the accused
including accused No.1 and 3 for the offences punishable
under Section 302 read with Section 34 of the IPC. The High
Court has erred in reversing the conviction and acquitting
accused No.1 and 3 – respondent No.1 and 2 herein, by
giving them the benefit of doubt.
5. In view of the above and for the reasons stated above the
present appeal succeeds. The impugned judgment and order
passed by the High Court of Madhya Pradesh in Criminal
Appeal No.339/2006 in so far as acquitting respondent No.1
and 2 herein – original accused No.1 and 3 for the offences
punishable under Section 302 read with Section 34 of the
IPC is hereby quashed and set aside. The judgment and
order passed by the learned Trial Court convicting
respondent No.1 and 2 herein original accused No.1 and 3
for the offences punishable under Section 302 read with
Section 34 of the IPC is hereby restored. The sentence
imposed by the learned Trial Court is also restored. Now
respondents herein – original accused to undergo the
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remaining sentence as per the judgment and order of
conviction and sentence passed by the learned Trial Court.
Respondent No.1 and 2 to surrender before the concerned
Jail authorities or Court within a period of four weeks from
today. The present appeal is accordingly allowed.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B. V. NAGARATHNA)
New Delhi,
March 09, 2022
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