Rakesh @ Rodia S/o Sharwan Kumar vs The State of Rajasthan

Validity of judgment dated 04.02.2008 passed by

Additional Sessions Judge, Fast track, No.3, Hanumangarh

convicting the appellants-accused under Sections 302-120-B and

392 IPC in Session Case No.19/2007 (25/2006) has been

challenged by this criminal appeal.

Brief facts relating to the crime reveals that on

03.03.2005 Vijay Kumar (PW-1) submitted a written

information to the S.H.O., P.S. Pilibanga alleging inter alia that:

"VERNACULAR MATTER OMITTED"

On the basis of this report, FIR No.30/2005 was

registered at P.S. Pilibanga for the offences under Sections 302,

394 IPC and 27 Arms Act on 03.03.2005 and after due

investigation, accused-appellants were charge-sheeted for the

offences under Sections 302, 396, 395, 120B and 412 of IPC and

Section 27 Arms Act.

The learned trial court framed charges against the

appellants-accused for the offences under Sections 395, 396, 302

and 120B IPC and all were tried, the prosecution produced 21

witnesses and got 76 documentary evidence exhibited. The

accused-appellants were examined under Section 313 of Cr.P.C.

and defence examined DW-1 Sukhdev Singh in their defence. The

learned trial court, acquitted two co-accused from all the charges

and convicted both the appellants for the offences under Sections

302 / 120B and sentenced them for life imprisonment with a fine of

Rs.5000/- in default to undergo three months'' rigorous

imprisonment and seven years'' rigorous imprisonment with a fine

of Rs.2000/- in default whereof to undergo one month''s rigorous

imprisonment for the offence under Section 392 IPC, both the

sentences were ordered to run concurrently. Accused Ravi was

declared a Juvenile, so his trial was conducted by Juvenile

Board/Court, same is apprised to have been culminated in

conviction.

Heard the submission of rival sides, learned

counsel for the accused-appellants has contended that trial Court

has committed manifest error in arriving at the findings because

prosecution has failed to produce reliable evidence with respect to

alleged conspiracy and witness corroborating the alleged factum of

conspiracy PW.3 Mahesh Kumar has not been believed and relied

by the trial Court, so in absence of such a evidence, rest of the

accused-appellants cannot be convicted under Section 120-B IPC

and there is no charge under Section 34 of IPC, so conviction of

both the appellants as ordained by trial court under Section

302 / 120-B is not sustainable, all the witnesses are relatives and

no eye witness was there but the trial Court has wrongly relied

upon their statements, recoveries are not made according to the

provisions of the Evidence Act, two of the accused persons have

already been acquitted by the trial Court, which goes to say that

the story of the prosecution was a bundle of falsehood and on the

same, allegations, rest of the accused persons may not be held

guilty and convicted, so the appeal be allowed and both the

accused-appellants be acquitted.

Per contra, learned public prosecutor has

contended that there is no illegality in the findings of learned trial

Court, had it been wrong then all the accused persons would have

been convicted, but learned trial Court has properly evaluated

evidence of each and every witness and has based the judgment

on it. PW.1 and PW.2 have witnessed the incident by their own

eyes and they have narrated ocular testimony, recoveries of the

looted cash and belongings of deceased Shiv Naraian have also

been made on the instance of accused persons and their cloths

have also been found tainted with blood of "A" group, which have

been found on the wearing apparels of deceased person, ballistic

expert has also opined that the fire was shot and the pistol was

found with the residue of fire particles, its barrel was found giving

odour of fire. Accused were identified at the time of committing

offence and they were kept "baparda" and in their identification

test parade, they have been identified by the witnesses before a

parade conducted by a Judicial Magistrate, who has also been

examined as PW.11 and has confirmed the same. Learned public

prosecutor has further contended that in view of the provision of

Section 464 of CrPC, the accused persons have not been

prejudiced by alleged non-joinder or omission of a charge of

common intention and there is no effect on the findings, they have

committed murder and robbed an innocent trader, who resisted

loot and was shot at by the accused persons, acting in concert and

in furtherance of common intention, so sentence and findings be

upheld and appeal be dismissed.

Perusal of evidence which is available on record of

trial court goes to suggest that the prosecution has produced

material and reliable eye witnesses in support of their story,

prominent part of it are as under.

PW-1 Vijay Kumar author of F.I.R. and real

brother of deceased, who used to return to home along with his

deceased younger brother, since all the brothers have been said to

be living in close proximity though they were working separately.

PW-1 Vijay Kumar has narrated everything in a

meticulous and categorical way. He has said, on that day he had

called "Mahesh Kumar" to meet at the shop of his deceased

brother, where this witness was approaching after closing his shop

and soon as he reached near the shop of his brother, he found

that his brother was beseized and surrounded by three persons,

who were trying to snatch his cash-bag and the deceased

countering and endeavouring to resist the loot attempt, he has

narrated that by that time, Mahesh Kumar, also approached

there, who, too witnessed the entire unfortunate and attempt of

loot, which was being made by the culprits collectively and has

further said that one amongst three culprits was bit tall, was

equipped with "fire-arm", fired at his deceased brother and all fled

away after looting bag of his brother. Vijay Kumar PW-1 as well

as Mahesh Kumar PW-2 have ratified and corroborated this

episode in their ocular testimony. Perusal of police statements of

both these witnesses goes to show that their testimony is almost

identical, nothing abnormal or contradictory has emerged from

their testimony, trite contradictions which have occurred, adds

truthfulness and verity to the evidence being natural.

PW-1 Vijay Kumar, the author of the FIR has

said that the event belongs to about one and half years back of

3.3.2005, quarter to 9 had struck, he was there in the lane of his

brother Shiv Narayan shop, he heard clamour from the side of the

shop of his brother, so he rushed to that side, where he found

three young boys aging of 20 to 21 years had surrounded his

brother Shiv Narayan, one was having pistol in his hand, he was

trying to snatch bag from the hand of his brother Shiv Narayan

and tall sized boy fired shot at his brother and after snatching his

bag, all the three fled away. He has said that the bag was

containing documents of shop, currency, purse and watch etc., he

has further said that he, Mahesh, Kuldeep took his brother to the

hospital, where after few moments his injured brother was

declared dead. He has ratified Ex.P.1 FIR and accepted his

signatures over it. He has further said that he can identify all

these three persons and during the course of testimony, he has

correctly identified two accused-persons "Sanjay alias Baba" and

"Rakesh", who were present in the Court that day, subsequently,

he has confirmed veracity of Ex.P.2, P.3, P.4,P.5. P.6 and P.7 and

has ratified them. He has further said that after 15 to 16 days

later to the occurrence, identification of accused persons was

conducted by Magistrate Sahab per Ex.P.8 and P.10, which

contains his signatures, he has further said that his deceased

brother Shiv Narayan used to bring yield of about 25-30

thousands daily, which he used to keep in his bag, in his cross-

examination, he has further said that they all four brothers reside

at the same place and has clarified that he was accustomed to

come to his deceased brother''s shop and both used to go home

together after closing their shops. He has said that he and

Mahesh supported in putting and helping injured Shiv Narayan to

hospital by a jeep, so their cloths and hands also got smeared

with blood, anything causing weakness or contradiction or

suspicion or causing adversity on the merit of the testimony has

not emerged from the evidence of this witness, likewise PW-2 is

also a witness of the incident, who too viewed the incident by his

own eyes and has made an "ocular version" of the incident by

saying that the occurrence belongs to one and half years back, it

was about quarter to 9 of the evening, he was coming towards the

shop of Shiv Narayan, where he was scheduled to meet Vijay

Bansal, soon as he reached near the shop of Abhoria, he found

Vijay rushing towards the shop of Shiv Narayan, so he too acted

alike, as soon as they reached the shop of Shiv Narayan, they

found that Shiv Narayan was surrounded by three young chaps,

one was having pistol in his hand and they were trying to snatch

bag from Shiv Narayan. Suddenly, one, who was having pistol in

his hand, opened fire at Shiv Narayan and all the three fled away

after snatching bag of Shiv Narayan, they shouted, people

gathered, Shiv Narayan fallen there, so he, Vijay Bansal and

Kuldeep took Shiv Narayan to the Government Hospital Pilibanga,

where Doctors started treating him, but soon they declared Shiv

Narayan dead, he too has said that boy, who opened fire was bit

tall, fair complexioned having tiny moustache, rest two were of

average hight, one of Wheaties complexion and another was non-

fair.

He too has identified two accused persons

during the course of trial by correctly denoting Sanjay alias

Baba and Rakesh alias Rodia, third one stated not to be

present, on that date, this witness has also ratified Ex.P.2,

P.3, P.4 and P.5 and has confirmed the same, further he has

narrated that 15 to 16 days later to the event, identification test

parade of accused persons was conducted in the jail by Magistrate

and Exhibit 8 and 10 were prepared, which contain his signatures,

this witness has also been cross-examined minutely but if we scan

police statements of this witness, which are exhibit D.1, we find

that nothing abnormal which could be said to be material or

unnatural has emerged, which could be contradictory or causing

adversity to the value of testimony of this witness, so testimony of

this witness is also creditworthy.

PW-3 Mahesh Kumar is a tea shop keeper of

the vicinity of the shop of the deceased, he has narrated that five

accused persons namely Labh Singh, Sanjay alias Baba, Vijay alias

Bunti, Ravi, Rakesh alias Rodia had visited his tea shop on 3rd

March in the evening at about 7:30 to 8 PM and he while serving,

over-heard, they were talking to loot someone, when he reached

near them, they turned silent. He has further said that he had

seen Ravi was having something alike pistol in his pocket, he has

further said that "he over-heard, like Labh Singh was saying

that in the lane of Ganga Ram, they were to plunder a

Baniya, who used to return with money bag from Mandi,

when all shops are almost close", then all went in the lane of

Ganga Ram after sometime a bang sounded and acrimony

occurred, he got puzzled and after closing shop, he went away to

his residence, cross evidence of this witness, discloses that

testimony and attitude of this witness has not remained

trustworthy since he has not narrated the kind of serious nature

over-hearing, which he over-heard from the accused persons,

while serving tea and water in his tea shop. Some unusual has

also emerged from the cross-examination of this witness since he

has said that he witnessed pistol like object, when he went to

serve water, when he went to serve tea they again kept mum, it

appears to be bit unusual that a gang of criminals would visit in a

tea shop with palpably visible weapon and utter amongst

themselves that after some time, shops will be closed, a Baniya

will come with bag, who was targeted to be looted and this tea

shop keeper, instead of sharing of these unnatural to the adjacent

shop keepers or police authorities, goes silently to his home, so

creditworthyness of testimony of this witness got eroded because

of being unnatural, so has correctly not relied.

PW4 Ganga Ram is a witness having tea and

milk shop near by, he has dded that about one and half year back

at the time of half past 8, he heard a sound and found three

young men running away towards station side, when he went near

the shop of Shimbu teawala, then found that a body was being

carried and taken away and people were gathered, he too has said

that on going to hospital, he found that the individual was shot at

head but he had said that he could not recognize culprits,

testimony of this witness goes to show that three young chaps

were there, who were fleeing away from the side of occurrence

after committing unlawful, testimony of this witness fortifies

creditworthyness of entire evidence and evidence of ocular say as

discussed earlier of PW.1 and PW.2.

PW-5 Prem Prakash brother of deceased has

further confirmed and ratified arrest memos and recoveries of

weapon, he has ratified arrest memo of accused Sanjay being

Ex.P.12 and 13 of Labh Singh and has accepted his signatures on

these documents and with respect of recovery of pistol and

cartridge, he has said that Ravi Kumar took them near the house

of "Babulal Parshad" and from nearby house, he dug out a

polythene containing a pistol, two live cartridges and one empty

cartridge, pistol was emanating odour, police sealed the empty

cartridge and pistol and two live cartridges, its recovery memo is

Exp.P.14 and sketch map is Exhibit 15 and 16, which contains his

signatures.

PW-6 Madan Lal is also witness of "recovery"

who has said that he had gone to Hisar with police party about

quarter to two years back. "Ravi Kumar" and "Rakesh" were

there, they had informed their names being Ravi Kumar and

Rakesh confirming Exhibit 17, he has said that on search of Ravi

Kumar Rs.5200/- was found with a purse containing identity card

of Shiv Kumar with some currency notes and Ex.P.17 contains his

signatures, he has further said that on search of Rakesh,

Rs.3800/- were recovered along with a steel watch of the chain

and on the lock of the chain, Shiv Kumar was embossed, its memo

is Exhibit 18, he has further confirmed arrest memo of Labh

Singh and Sanjay alias Baba Ex.P.12 and P.13 and has said

recovery memo of Ravi Kumar is Ex.P.19 and recovery of memo

pertaining to Rakesh is Ex.P.20, he has further said that

recovered articles were sealed before him and his signatures were

taken on Exhibit 19 and 20, he has further said that on the

instance of Ravi Kumar a revolver was recovered vide

Ex.14, 15 and 16, which contains his signatures and

recovered articles were sealed in a cloth bag, he has further

said that on next day Sanjay alias Baba also got recovered a bag

on which Gauri Neel was written, recovered bag was containing a

seal of Shiv Traders, which was seized by the police there, its

memo of recovery is Ex.21.

He has further said that spot map and recovery

memo contains his signature, in his cross-examination, he has

narrated the things in a straight way and said that bag was got

recovered from latrine, it was wet and wiped later, testimony of

this witness appears to be reliable.

PW-7 Raja Ram has said that he knows Labh

Singh, who is of his village but has denied his police statements,

nothing concrete has emerged from his statement.

PW-8 Tilak Raj is also of recovery witness

belonging to ''pant'' and ''bushirt'' from the house of Babu Lal

Bhargav by Rakesh alias Rodia, who was ''baparda'' and had

informed his name, the recovery memo is exhibit 24 and its spot

map is exhibit 25. He has said that after reading he had signed

Ex.24 and PW-9 Babu Ram is also a witness of recovery of bag

Ex.21 and 22.

PW.14 Om Prakash Godara, SI is a witness of

Ex.P.18 and 20 pertaining to arrest of Rakesh and its fard and he

has said that he was also a member of arrest team and vide

Ex.P.18 Rakesh @ Rodia was arrested by Sarwan Ali, CI at the

time of his arrest Rs.3800/- were recovered from him and an old

titan watch, on the chain lock of which Shivnaraian was embossed

was recovered from him, which was seized vide Ex.P.20, he has

further said that it was confessed by the detenue that the

recovered currency and watch were of loot.

PW.15 Lalchand is also a witness of recovery

before whom ten currency notes of Rs.100/- were recovered from

Labh Singh vide Ex.P.45 and 46.

PW-10 Vinay Kumar has ratified exhibits 5, 6,

7, 2, 3 pertaining to spot of incident and has said that about two

years back, Shiv Narayan was shot dead, he has further confirmed

Exhibits 24 and 25 and has said that Rakesh Kumar got recovered

''pant'' and ''bushirt'' from the house of Babu Lal Bhargav from

dung mould, in his cross-examination, he has said that he was

there, so he signed on the documents, he has further said that

Rakesh had signed on the papers before him and he has also said

that the detenu said to the police that he is Rakesh, who was

''baparda'' .

PW-11 Shyamsundar Laata is an important

witness of prosecution being a Magistrate conducting identification

test parade and he has candidly and minutely narrated the entire

process of conducting identification parade and has said that all

the accused persons were properly identified by the witnesses

and has ratified Ex.8 and Ex.9 and Ex.26 relating thereto, which

goes to show that identification of both the accused persons

"Rakesh alias Rodia" S/o Sharvan Kumar adopted son of Punam

Chand Mochi and that of "Sanjay" was properly been done leaving

nothing dubious.

PW.13 Jitendra Singh is a photographer, who

has ratified snapping of photographs and has said that Ex.P.27 to

Ex.P.33 are its negatives and the positive one from 34 to 40.

PW.12 Ramkishor is a Malkhana incharge, who

has ratified Ex.P.41 to 44 and has said that on 04/03/2005, he

was thana incharge at Police Station Pillibanga and SHO Ranjeet

Singh deposited articles in Malkhana relating to case No.37/05

under Section 302 of IPC, which was entered in Ex.P.41, Ex.P.41A

is its copy, on 22/03/2005, Ravataram FC was given these "A", "B",

"C" sealed samples for deposit in FSL, its entry is Ex.P.41, which

contains his signatures and on 24/03/2005 Ravataram deposited

the same and gave receipt, which is Ex.P.42, he has further said

that on 09/03/2005 Sarwal Ali, CI, deposited articles from F to K

in duly sealed conditions, which were entered in Ex.P.43, its

photocopy is Ex.P.43A, these articles were given to Ravataram on

22/03/2005 for depositing in FSL, which were deposited on

24/03/2005 and its receipt was delivered, which is Ex.P.44 and

entry relating to delivery of articles to Ravataram is Ex.P.43, which

contains his signatures and signatures of Ravataram. Ravataram

had given its receipt, which is also entered therein and on

22/03/2005, Jaswant Singh, FC through whom articles were given

for Jaipur FSL, which were deposited there vide receipt Ex.P.44, he

has further said that the articles were remained properly sealed

during his custody.

PW.18 Jaswant Bhakar constable has said that

he was posted at thana Pillibanga on 22/03/2005 and was given

three packets relating to F.I.R. No.37/05 for depositing in FSL,

Jaipur and he got a forwarding letter issued from SP Office, which

is Ex.P.49, which contains his signatures and after depositing the

same in Jaipur FSL, he gave its receipt Ex.P.44 to Malkhana

incharge, he has also said that during the course of his custody,

samples remained properly secured and sealed and his departure

entry is Ex.P.50 and returned entry in Rojnamcha is Ex.P.51 and

Ex.P.5A, 51A are its copies

PW.19 Ravataram is also a constable depositing

samples, he has said that on 22/03/2005, he was posted at

Pillibanga thana and pertaining to F.I.R No.37/05, five packets

were given to him by Malkhana incharge in sealed condition for

depositing in FSL Jodhpur, he went to the SP Office and got a

forwarding letter issued , carbon copy of letter of thana incharge is

Ex.P.52 and carbon copy of forwarding letter is Ex.P.53, which

contains his signatures, he has further said that after depositing

the samples, he had received its receipt, which is Ex.P.42 and

during the course of his possession, the samples were well

secured and remained sealed and he deposited the same in sealed

condition, he has further said that his departure is entered as

Ex.P.54 and return as Ex.P.55 in Rojnamcha, Ex.P.54A and 55A are

its copies, he has also said that the FSL deposit receipt is Ex.P.42,

which was given to Malkhana incharge.

PW.16 Ranjeet Singh is SHO, who was posted

at police station Pillibanga on 03/03/2005, on the day when the

crime took place, he has said that after getting information, we

visited the spot and also went to the hospital and brother of

deceased gave him report, on the basis of which FIR was lodged,

which is Ex.P1, he has further said that on the information of Vijay

Singh, spot map was drawn, which is Ex.P.2 and sample of piece

of blood smeared floor was taken vide Ex.P.3, which was sealed

and has said that postmortem of the body was got conducted and

blood stained clothes of the body were also taken and sealed vide

Ex.P.4, Namunaseal is Ex.P.3 and Ex.P.4, he has further confirmed,

Ex.P.3 and Ex.P.6 Panchayatnama and acknowledgment of receipt

of body Ex.P.7.

Perusal of testimony of this witnesses shows

that he has remained a partial investigator, who was

shifted from the police station, owing to public wrath and

further investigation was conducted by another IO Sarwan

Ali PW.20.

In his cross-examination, he has narrated micro

facts relating to the spot of occurrence, observed by him and has

said that shutter of the shop was opened, light inside the shop and

outside were on, when he reached at the spot and has said that

blood was there at the spot, where shutter enters, blood was

there at the point of entry of the shutter and blood was there in

the hole, he has further said that he did not find any pellet at the

site, since the fire was informed to be made from close proximity

and has further said that when he arrived hospital, injured was

lying on the operation theater and has observed that Ex.P.2 was

drawn on the information of witness.

PW.21 Jailal ASI, has said that on 05/03/2005,

he was ASI at thana Pillibanga and was sent for search of accused

Sanjay and he had brought Sanjay @ Baba on 07/03/2005 at

thana Pillibanga, who was in Nohar at his relative''s residence and

was further arrested by thanedar saheb,

PW.20 Sarwan Ali, IO conducted rest and bulk

of the investigation, he has narrated and ratified all the exhibits

relating to the investigation and exhibits prepared before him and

has ratified Ex.P.7, 11, 12, 14 to 25, 45, 46, 52, 56 to 59, 61 to

75, during the course of testimony, the articles relating to the

recoveries have properly been explained and ratified by this

witness in the Court, all the recoveries, which have been made

from the accused persons, on their instance and recovery of pistol,

like cartridges and empty cartridge and clothes of accused persons

and recovery of robbed cash, has properly been narrated by this

witness, he has further explained that the identification test

parade of both the accused persons was conducted by Magistrate

and niceties relating to test identification parade and exhibit

prepared by the magistrates have also been properly explained

and ratified by this witness, this witness has thoroughly been

cross-examined, but nothing abnormal has emerged from the

cross-examination of this witness and the narration of entire

chronology of the investigation is almost similarly confirmed and

ratified as the recovery witnesses and as well as eye-witnesses

have revealed in their testimony.

PW.17 Dr. Hari Om Bansal is a doctor before

whom the injured was taken and he attended the injured and

subsequently conducted postmortem on the dead body of the

deceased, since Ex.P.47 has got a column pertaining to

"symptoms observed before death" against which "gasping" is

mentioned, which goes to denote that the patient was found

"gasping" at the time, when he was brought before death.

Dr. Hari Om Bansal has said that on 04/03/2005,

he was posted at CSC, Pillibanga, on the request of police dead

body of Shivnaraian son of Ram Chandra was examined by him at

8 a.m. , he has said that lividity was present on the dependent

parts of the body. Head, chest and face was full of blood and the

body was having following injuries :-

"1. Laceration of right eye ball with # of supro-lat wall medial cornor of eye ball cavity with bleeding wound margin are lacerated & inner part of eye ball disrupted. 2. Small rounded lacerated wound - multiple on inferior margin - .2 to .3 cm-6 in numbers, -margin contused and black. 3. Horizontal wound - 2x.2x.1 cm - 2 in number on lat surface of face. Distal part is tapper. 4. On exposure of skull - right temporal muscle is haemtomise & pellets are recovered 4 (sic) in number - meningeal membren healthy - brain haematomose in Sulci - deepar part is lacerated near right eye - pellets are recovered from mainly from right lobe".

He has further opined that after opening the right

temporal muscle haematoma sulci area of right eye was lacerated

pellets were ousted from right lobe and has further said that cause

of death was excessive haemorrhage and brain injury because of

cutting of vessels caused by fire-arm and "fire arm" injury was

caused from close proximity. Death had occurred twelve

hours ante postmortem and he has further said that 26

pallets were ousted from the body, which were sealed and

has ratified Ex.P.47, postmortam report is Ex.P.48, Ex.P.48

relates to ousting and sealing of 26 pellets.

Examination made under Section 313 of CrPC

with respect to accused Rakesh @ Rodia and Sanjay @ Baba

reveals that they have denied interrogatories.

DW.1 Sukhdev Singh, father of accused Labh

Singh has produced himself in defence evidence and he has said

that his son Labh Singh was taken to police station on say that he

will be interrogated, same day this witness was called by

thanedar, who demanded Rs.1000/- from him to release his son,

he has further said that he met with the demand and paid

Rs.1,000/- to him, he was Barra Thanedar, but he did not release

his son, police never came to his residence nor recovered

anything, in cross-examination, he has said that he did not

apprise anything to high officials regarding it.

Upon appraisal of afore-discussed evidence,

it is clear that the incident is properly explained by ocular

evidence Vijay and Mahesh PW.1 and PW.2 both have

withstood meticulous in their ocular say that three young

boys aging 20 to 21 years, were trying to snatch bag of his

brother Shivnaraian, who was surrounded by these

assailants, ultimately accused holding pistol in his hand,

fired upon and shot at Shivnaraian and after snatching his

bag, all fled away. Weapon of assault country-made pistol

has been recovered on the instance and information of

accused, recovery of which has properly been narrated by

recovery witnesses as well as by investigating officer.

Looted bag of the deceased containing documents of the

trade, watch, seal and purse have also been recovered

from the accused persons, after arrest, the accused

persons Sanjay and Rakesh were kept face cladded and

identification test parade of both these accused persons

was conducted before a Judicial Magistrate and PW.11 Sri

Shyam Sundar Laata has properly explained it that both the

accused persons were properly and precisely identified by

the witnesses. Even during the course of testimony, both

these witnesses have correctly pointed them out, it is not

so that they have been identified in the Court for the first

time but their identity was primarily confirmed during the

course of identification test parade, and they were again

identified during the course of evidence as to reaffirm.

Bag of the deceased person, his watch having his

name embossed on chain lock, purse and few amount of

currency have also been recovered on the instance of the

accused persons. Independent witness Shopkeeper PW.1

Gangaram has also asserted that he witnessed three young

boys running away after commission of the offence.

Ballistic report Ex.P.76 also connects the accused

persons with the offence since country made pistol, which

has been recovered on the information and at the instance

of accused Ravi has been found to be a weapon by which,

fire was shot and it was found to be used, as per the

Ballistic report as mentioned in Ex.P.76 and 12 bore

cartridge has also been opined to be fired from the

cartridge case and 26 damaged lead pellets have also been

opined to could have been fired from the recovered country

made pistol, even rest of the two live cartridge of 12 bore

have been found fire worthy and the recovered 12 bore

country made pistol has also been found to be serviceable.

Adding to it is FSL report Ex.P.66, which connects

accused persons with the crime because it too confirms that

"Baniyan" and pant of deceased and bu-shirt of both accused

Rakesh and Ravi Kumar have been found to be stained with "A"

group blood. Ravi Kumar was held to be a juvenile vide an age

enquiry verdicted on 18/01/2006, whose trial has thence been

separated for trial through competent juvenile board and the same

is stated and apprised to have been culminated in conviction.

Accused "Sanjay" and "Rakesh" have been

identified in identification test parade, so their presence

and active participation in the crime is established.

Recoveries have also been made on their instance, so

conviction of all the accused may not be faulted.

It is clear that three young persons were there in

committing the offence of robbery with murder, one of them was

equipped with deadly weapon duly loaded with 12 bore cartridge,

all three tried to snatch bag of the deceased, they all went

together, surrounded the deceased and acted in furtherance of

crime, when failed to grab the belongings and bag, one fired a gun

shot, which yielded them to snatch and take away the booty,

which was recovered on their information and on the instance of

accused persons. All acted in furtherance of their common

intention to rob and frustrate resistance by all lethal means in

order to procure booty, which was subsequently shared by them

and recovered accordingly. Apart from country made pistol

weapon of assassination, looted currency has also recovered from

Rakesh and some of the booty has also been recovered from co-

accused Ravi, likewise pistol has also been recovered on the

instance of accused Ravi and purse of the deceased has also been

recovered from Ravi, whereas watch of deceased with Rs.3800/-

of booty has been recovered from Rakesh alias Rodia, so all the

evidence and facts relating to the case of prosecution goes to

show that pre-concert to loot and to kill in order to dispel

resistance was there, in furtherance of which all the accused

persons acted upon and committed the crime. Prosecution has

succeeded in establishing its case on the basis of ocular,

reliable and trustworthy evidence, well supported by

medical evidence with recoveries beyond the contours of

reasonable doubtfulness.

19A. Upon examining the entire evidence, it goes

to show that the accused persons acted in furtherance of common

intention with overt act and all the three persons, who have been

held guilty by the trial Court/s were seen in committing the

offence, recovery of weapon and looted articles and booty was

recovered on their information from their possession, they all

distributed the booty amongst themselves, though criminal

conspiracy has not been proved because of feebleness and non-

creditworthiness of evidence of PW.3 Mahesh Kumar, a tea

shopkeeper, but the entire evidence goes to show that all the

accused persons concerted and actively participated in the crime

in furtherance of common intention, though Section 34 which

ought to have been framed altogether was omitted by trial Court,

but if we scan entire evidence and charges coupled with

explanation of accused person as explained under the provisions

of 313 of CrPC, then it is obvious that the nature of charge/s was

very much clear to the accused persons and no prejudice could be

caused to them if, in lieu of Section 120-B of IPC, Section 34 is

replaced and they are punished accordingly.

Section 464 CrPC postulates effect of omission of

frame or absence of or error, in framing of charge and it says that

no finding, sentence or order by a Court of competent jurisdiction

shall be deemed invalid merely on the ground that no charge was

framed or on the ground of any error, omission or irregularity in

the charge including any misjoinder of charges, unless, in the

opinion of the Court of appeal, confirmation or revision a failure of

justice has, in fact, been occasioned thereby. So far as charges

are concerned, they have properly been explained and made clear

to the accused persons.

Appellant-accused Rakesh @ Rodia and Sanjay @

Baba have been charged as under :-

Accused Rakesh @ Rodia :-

"VERNACULAR MATTER OMITTED"

Sanjay @ Baba :- "VERNACULAR MATTER OMITTED"

Section 34 of IPC defines that when a criminal

act is done by several persons in furtherance of the common

intention of all, each of such persons is liable for that act in the

same manner as if it were done by him alone.

''Common intention'' implies pre-arranged plan

and acting in concert pursuant to the pre-arranged plan. Under

this Section, a pre-concert in the sense of a distinct previous plan

is not necessary to be proved. The common intention to bring

about a particular result may yet develop on the spot as between

number of persons with reference to the facts of the case and

circumstances of the situation. Though common intention may

develop on the spot, it must, however, be anterior in point of time

to commission of offence showing pre-arranged plan and prior-

concert and it has been held in Krishan Govind Patil Vs. State

of M.P., AIR 2004 SC 132 by Hon''ble Supreme Court.

In Amrik Singh v. State of Punjab, 1972 Cri

LJ 465 (SC), it has been held that common intention presupposes

prior concert.

In the Oxford English Dictionary the word

"furtherance" is defined as ''action of helping forward''. Adopting

this definition. Russel says that "it indicates some kind of aid or

assistance producing an effect in future" and adds that any act

may be regarded as done in furtherance of the ultimate felony, if it

is a step intentionally taken for the purpose of "effecting that

felony.

In Shankarlal Kacharabhai v. State of Gujarat, AIR

1965 SC 1260, the Supreme Court has interpreted the word

"furtherance" as ''advancement of promotion.

Common intention was a state of mind of an accused

which can be inferred objectively from his conduct displayed in

course of commission of crime as also prior and subsequent

concert and attendant circumstance.

"Common intention" means prior meeting of mind and

pre-arranged plan and prior concert.

A charge under Section 34 I.P.C. pre-supposes the

sharing of a particular intention and existence of common

intention as always to be informed from facts.

In B.N. Srikantiah Vs. State of Mysore AIR 1958

SC 672, it has been held that intention is a question of fact which

is to be gathered from the facts of the parties.

Section 34 I.P.C. is only rule of evidence, it basically

does not create any offence.

In Bhagwati Prasad Vs. State, 2003 (3)A Criminal

R 2692 Allahabad, it has been held that for inferring common

intention, it is not necessary that all the accused persons should

assault the victim if the evidence was available that offence was

committed in furtherance of common intention, the provisions of

Section 34 I.P.C. was applicable.

Section 34 was applicable even if no injury has been

caused by particular accused himself for applying Section 34 in

Ch. Pulla Reddy V. State of A.P ., AIR 1993 SC 1899, it was

not necessary to show some overt act on the part of the accused

in Sewa Ram Vs. State of U.P., 2008(1) Crimes 78 (SC).

In Dhanna V. State of M.P ., 1996 Crl.L.J. 3516

(SC) it has been held that Section 34 of I.P.C. can be applied even

if said section was not specifically mentioned in charge. In Garib

Singh Vs. State of Bihar, AIR 1973 SC 460, it has been held

that Section 34 would apply and where no charge has been

framed if evidence establish it.

In Raju Panduranga Mahole Vs. State of

Maharashtra 2004 Cri.L.J. 1441 (SC) it has been held that :-

" Section 34 I.P.C. 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 was 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 was 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. The true concept of Section was that if two or more persons intentionally do an act jointly, the position in law was just the same as if each of them has done it individually by himself."

In Pintoo @ Kamal Kishore and Anr. And Kalua @

Koshal Kishore Vs. State of Rajasthan, 2009 CriLJ 748, the

Hon''ble Supreme Court has held that :-

"To invoke aid of Section 34 of I.P.C. successfully, it must be shown that criminal act complained against was done by one of accused persons in furtherance of common intention of all; if this is shown, then liability for crime may be imposed on any one of persons in same manner as if act were done by him alone - Appellants P and K shared common intention with Appellant S to commit murder - Appellants P and K were rightly held guilty under Section 302 / 34 of I.P.C. - Appeals dismissed."

In Dalbeer Singh Vs. State of U.P., 2004

Cri.L.J 2025, the Hon''ble Supreme Court while interpreting

Section 464 of I.P.C. has held:-

Code of Criminal Procedure, 1973 - Section 222

and 464 - Indian Penal Code, 1860-- Sections 302, 304B, 306 and 498A -- Murder/abetment of suicide--Conviction and death penalty awarded by trial court for murder of his wife and two minor daughters--Appellant also convicted and sentenced under Section 498A --High Court acquitting appellant for offence under Section 302, I.P.C . but maintaining his conviction and sentence under Section 498A -- Not convicting appellant under Section 306 on ground that charge thereunder not framed--High Court choosing to rely on later decision of Supreme Court in Sangarabonia Sreenu V. State of A.P ., (1997) 5 SCC 348 - And not relying on earlier decision in Lakhjit Singh Vs. State of Punjab, 1994 Supp (1) SCC 173 of equal strength-- Whether decision in Sangarabonia Sreenu (supra) correct? - Held, "no"-- Only Section 222 and not Section 464, Cr.P.C . kept in view-- Possible for appellant or revisional court to convict accused for offence for which no charge framed unless failure of justice to occasion-- On facts, basic ingredients of offence under Section 306, I.P.C . established by prosecution--conviction thereunder not to result in failure of justice-- Hence, appellant convicted under Section 306 and sentenced to imprisonment for nearly six years already undergone.

In view of Section 464, Cr.P.C ., it is possible for the appellant or revisional court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would, in fact, occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. Hence, Sangarabonia Sreenu V. State of A.P ., (1997) 5 SCC 348 was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 I.P.C., he cannot be convicted for the offence under Section 306 I.P.C."

Likewise in Balraje @ Trimbak Vs. State of

Maharashtra, 2010 Cri.L.J. 3443, the Hon''ble Supreme Court,

while deciding the provisions of Section 464 I.P.C. has held that:-

"It is possible for the appellant or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that failure of justice would in fact occasion. In the present case, the witnesses examined on behalf of the prosecution, whose testimony has been relied upon, clearly deposed that appellant has assaulted the deceased with a knife. In his examination under Section 313 Cr.P.C. a specific question was put to the appellant and he was made aware of the basic ingredients of the offence and the main facts sought to be established against him were explained to him. Thus, he can be convicted under Section 302, I.P.C . for having committed murder."

For the reasons adverted and discussed

above, we, are of the considered view that Section 120-B,

which is coupled with Section 302 in convicting and

sentencing the accused persons is modified, altered and

replaced by Section 34 .

As such, both the appellants-accused persons are

convicted under Section 302 / 34 of I.P.C coupled with Section 392

of I.P.C. Merely section 34 is replaced in lieu of Section 120-B of

IP.C. Quantum and dictum of rest of the sentence and impugned

judgment shall remain unaltered.

With a result, appeal lacks merit and deserves to be

dismissed, hence, the same is dismissed, accordingly.

Record of learned trial Court with copy of this judgment

be returned forthwith.