Ramesh & Others vs State of Madhya Pradesh

This Criminal Appeal is directed against judgment dated 10.06.2005 in Sessions Trial No. 181/2002 whereby the trial Court convicted the

Appellant No.1-Ramesh S/o Harnayan for commission of offences punishable under Section 147, 148 & 302 IPC and Appellants No. 2 to 5 viz

Shivnarayan, Vinod, Krishnanarayan & Yogendra @ Baba under Sections 147, 148, 302/149 IPC and sentenced to undergo life imprisonment

and fine of Rs. 10,000 each for the offences under Section 302 of IPC and Section 302/149 IPC; 2 years RI with fine of Rs. 3000 each for the

offence under Section 148 IPC with default stipulation for causing murder of Bhure @ Sanjeev. All the sentences to run concurrently.

As per prosecution, on 04.06.2002, at 5:45 pm the deceased Bhure @ Sanjeev while was walking down to his house when reached in front of

the house of Ramesh (Appellant No.1), there was talk between the deceased and Appellant No.1 about running/operating of vehicle at that

moment Appellant No.1 went into the house and brought out 315 bore rifle from his house, behind him came Krishnanarayan (Appellant No.4),

Baba (Appellant No.5), Vinod (Appellant No.3) and Shivnarayan (Appellant No.2). On sensing some dispute, the complainant Laxminarayan

(PW-5) father of the deceased came to the spot at that very moment Appellant No.1 fired thrice at Bhure who fell down and died. The incident

was recorded on Dehati Nalashi (Exhibit P-4). On the basis whereof, FIR (Exhibit P-25) was registered at Police Station Lahar, wehreon against

Appellant No.1 offence punishable under Section 147, 148, 302 IPC and against Appellants No. 2 to 5 offence punishable under Section 147,

148, 302/149 IPC was registered as Crime No.90/02.

In the course of investigation, besides preparing the map depicting scene of crime, the investigating agency collected the blood stained soil, plain

soil, blood stained clothes. The weapon used for commission of the crime, i.e. 315 bore rifle bearing No. 89/AB/0119 (90F) was seized at the

instance of Appellant No.1 vide Exhibit P-21 on 16.06.2002 from the shop of arms dealer Smt. Vandana Kaurav, witnessed by Kamal Kumar

(PW-19) and Narendra Kaurav (PW-21). Two empty cartridge of 315 bore rifle bearing No. BMM KF 92 and BMM KF 98 were seized from

the scene of crime from Munnibai (PW- 10) mother of deceased. The rifle and empty cartridges and the t-shirt and other blood stained articles

were sent for the scientific analysis. The ballistic report is Exhibit-27. The dead body was sent for postmortem. The report whereof is Exhibit P/19.

Dr. D.K. Gupta, (PW-15) Medical Officer, Community Health Center performed the autopsy on 05.06.2002.

The cause of death as per Dr. D.K. Gupta (PW-15) was coma due to brain injury inflicted by firearm weapon within 24 hours from postmortem

examination.

After due investigation, the charge-sheet was filed before Judicial Magistrate who committed the case to the Court of Session, transferred to

Additional Sessions Judge Lahar, District Bhind for trial.

The appellants abjured their guilt by taking the plea that they are falsely implicated because of previous enmity.

The prosecution examined 25 witnesses, of whom PW/5, PW/10 & PW/11, viz, Laxminarayan, Munnibai and Pushpabai were examined as

eye witnesses. Dr. D.K. Gupta who performed autopsy was examined as PW-15. The ballistic report was proved through Ajay Patil (PW-22) the

Investigating Officer, whereas the recovery and seizure of the empty cartridges and 315 bore rifle was proved thorough Lallu (PW-9), Kamal

Kumar Prajapati (PW 19) and Narendra Kaurav (PW-21).

The trial Court discarding the defence of being falsely implicated returned the finding of guilt. The trial Court found each of the charges levelled

against all the accused being proved beyond doubt on the basis of the evidence of Laxminarayan (PW-5), Munnibai (PW-10), Pushpabai (PW-

11) & Dr. D.K. Gupta (PW-15), the FSL report and the medical evidence in causing murder of Bhure @ Sanjeev, and convicted and sentenced

them vide impugned judgment.

The appellants have challenged the judgment on the ground that none of the eye witnesses were present at spot when the alleged incident

occurred. That the rifle having been deposited with the arms dealer on 02.06.2002 and recovered from the said arms dealer on 16.06.2002 rules

out of its being used for commission of offence. It is further contended that even the evidence of eye witnesses is doubtful because the injuries

which were stated to have been caused by the firearm do not match with the actual injuries found on the body of the deceased. It is further

contended that Appellants No.2 to 5 are falsely implicated of having shared a common object in killing Bhure @ Sanjeev.

Learned counsel for the appellants to substantiate the contention qua the use of rifle in question has led us through the evidence of Munnibai

(PW-10), Geeta (PW-23) wife of Munnalal, owner and licensee of the weapon, Shivendra Singh (PW-24) and the receipt for getting the arms for

repairing (Exhibit-P-24C).

These contentions, however, pales in the air when tested on the anvil of FSL report (Exhibit P-27), the seizure of the rifle at the instance of

Appellant No.1 and the evidence of the Investigating Officer - Ajay Patil (PW-22) is considered.

Exhibit P-27 is the ballistic report wherein Article.A which is 315 bore two used empty cartridges, marked as EC1 and EC2 when compared

with firing pin and test cartridges TC (A1) through microscope were found to have been fired from Article A.1 i.e. the seized 315 bore rifle. The

report further reveals that EB1 a used soft nose copper jacketed disfigured bullet had stains of blood and was found to be fired from 315 bore

rifle, Article A1. Article C1 light sky color t-shirt had hole on its back, right hand shoulder having circumference 0.9"" x 0.4"" where on microscopic

chemical analysis the edges were found having traces of lead and copper. Learned counsel for the Appellants though laboured to demolish the

prosecution story of establishing the 315 bore rifle article A-1 being used for commission of offence. The Investigating Officer, Ajay Patil (PW-

22), however, duly proved the recovery of empty cartridges from the spot where the crime was commissioned. The Investigating Officer who was

subjected to exhaustive cross examination proved the recovery of 315 bore rifle from the arms dealer and the procedure followed in sending the

same for scientific analysis. No cogent material evidence is commended at to disbelieve the seizure of two empty used cartridges of 315 bore rifle,

being found fired from the rifle seized. The prosecution thus succeeded in establishing that the seized rifle Article A.1 was used for the commission

of offence.

It is next contended that Laxminarayan (PW-5), Munnibai (PW-10) and Pushpabai (PW-11) had not seen the crime being committed in their

presence and being the father, mother and auntie are planted by the prosecution, as the prosecution did not get the independent witnesses.

Laxminarayan (PW-5) is the complainant. In his statement in Court, he narrated the entire incident which took place on 04.06.2002 that, the

deceased Bhure @ Sanjeev who was a bus driver who 11/2 hour before the incident was alighted at Chaurai by Appellant No.5 and was abused.

Later on, when his son came to village Bijjaura, he was encircled by the Appellants No.1 to 5 in front of the house of Appellant No.1, who hurled

abuses, at that moment he (the witness PW-5) was in his cattle-shed which is near the house of Appellant No.1. On hearing the abuses, he came

out and saw Appellant No.1 carrying 315 bore rifle gave one fire which hit on the chest of Bhure, the second fire had hit the neck, the third fire

was aimed at him Laxminarayan (PW-5) which missed. At that moment, his wife Munnibai (PW-10) and younger brother''s wife Pushpabai (PW-

11) came on the spot and retorted assailants action who ran away from the spot. Munnibai (PW-10) in her Court statement stated that her son

Bhure @ Sanjeev was a bus driver, plying the bus from Sewda and used to come home after five, six or eight days. That 15 days before the

incident, he complained of being bullied by Appellant No.5 who alighted him at Chaurai. On the date of incident his son was coming from Chaurai,

whereas Appellant No.5 had already reached Appellant''s No.1 house. When Bhure was infront of the house of Appellant No.1, Appellant No.1

who was standing at the stairs carrying mouzer and Appellant No.2 to 5 carrying sticks had encircled Bhure. They were abusing Bhure; however,

when told not to abuse, Appellant No.1 fired the arm which hit Bhure on his chest. Thereafter, he came out of gate and again fired which hit the

neck of deceased, the third fire was aimed at Laxminarayan (PW-5), who ducked, therefore, escaped. This witness admitted about the previous

enmity. She also admitted of having taken two empty cartridges used in firing and give it to the Police during investigation. The third witness,

Pushpabai- (PW-11) also narrated in the similar terms as Laxminarayan (PW-5) and Munnibai (PW-10). The evidence of these eyewitnesses are

faulted at on the contention that they were not at spot. As had they been on the spot, they would have stated precise version as to the injuries

caused on deceased. It is urged that when injuries said to have been sustained by the deceased is examined with the medical evidence there is no

corroboration, as would substantiate the prosecution story that Laxminarayan PW-5, Munnibai PW-10 and Pushpabai PW-11 are the eye

witnesses.

We gave thoughtful consideration to these submissions and examined the same on the anvil of the eye witnesses Court narrated by

Laxminarayan (PW-5), Munnibai (PW-10) and Pushpabai (PW-11) and the injuries found on the body of the deceased and the statement of Dr.

D.K. Gupta (PW-15).

The postmortem report (Exhibit P-19) reveals following injuries :

Wound of entrance - oval in shape 2cm x 21/2 cm size x track deep situated over left front side of neck just below left ramus of mandible

bone. Margins of wound inverted burned echymased and deep collar of abrasion present over margins. Clotted blood present inside and around

the wound, there is no any blackening and tattooing mark around the wound. After opening this injury found that track of this wound is directed

slightly upward obliquely to wound right side of cranial cavity and caused damage to the skin sub cut tissue nack ms with blood vessels and Brain

stem during its course. Clotted blood present throughout the track of this injury and communicating with the track of injury No.2nd.

Wound of exit - lacerated wound size 21/2 cm x 3 cm x trackdeep in size situated over right side of occipital region margins of wound everted

irregular. Clotted blood seen around and inside the wound. After opening this injury found that track of this wound directed slightly downward.

Obliquely to wound left side of cranial cavity and causing damage to scalp skin, subcut tissue, ms and fracture of occipital bone with damage to

brain meninges end matter of occipital of brain and communicated to the track of injury No. Ist clotted blood present throughout the track of this

injury.

Wound of entrance - Round in shape size 11/2 cm x 1 1/2 cm x track deep situated over. Superio posterior aspect of right shoulder margins of

wound are inverted burned echymased and deep collor. Abrasion present over margins. Clotted blood present inside and around the wound. After

opening this injury found that track of this wound is directed obliquely downward to left side in the right thoracic cavity and causing damage to

skin, subcut tissue. Shoulder muscle thoracic muscle accrual layer of right lung and collor tissue of right lung with through thoracic inlet and a bullet

is buldging as a protuberance under neath the skin and subcut tissue at the level of T-12 on left side of back of thoracic about 2 cm lat. to the

vertebral colour. A cut made over buldging and bullet taken out and this bullet made up of lead mattel weighing nearly about 10-12 gms and

measuring 2 cm in length and 1.5 cm in breadth. Present and sealed in match box. Clotted blood present in right thoracic cavity.

That opinion was sought from the doctor Dr. D.K. Gupta (PW-15) by Ajay Patil (PW-22), Investigation Officer, vide Exhibit P/23 as to the

mode of death, who vide opinion dated 31.07.2002 (Exhibit P-23) opined that the death of Bhure was homicidal. In his Court statement Dr. D.K.

Gupta (PW-15) affirmed the injuries found on the body of the deceased. In paragraphs 6 and 7 of his crossexamination, this witness states that

two bullet injuries were caused to the deceased of which injury No.1 was from close range but was not sure that the arm was fired from a distance

of 6 feet. The doctor admits that there was no charring or tattooing mark over the wounds. He does not dispute that the color of abrasion would

be when an arm is fired from 5-6 feet or more than that and that injury No.1 cannot be caused when the victim is at a lower level and the assailant

at higher level.

However, the injuries found on the body of the deceased, the doctor''s evidence and the ocular evidence of Laxminarayan (PW-5), Munnibai

(PW-10) and Pushpabai (PW-11) proves beyond doubt that the prosecution succeeded in establishing that the fatal injuries sustained by the

deceased was caused by Appellant No.1 with Article A.1. Few aberrations pointed out by learned counsel for the Appellants from the statement

by Laxminarayan (PW-5), Munnibai (PW-10) and Pushpabai (PW-11) given to the Police under Section 161 Cr.P.C and the Court statement are

natural, because the circumstances under which the statement to the Police on the happening of an incident and when the person makes a statement

in the Court after lapse of some time. Minor omissions in the statement at the incident and some exaggeration in the Court statement though cannot

be ruled out but they are natural and can be ignored as in the present case, wherein the eye witnesses viz Laxminarayan (PW-5), Munnibai (PW-

10) and Pushpabai (PW-11) corroborated with the medical evidence coupled with the fact that all the two cartridges were found to have been

fired from the 315 bore rifle which was seized at the instance of the assailant Appellant No.1. The previous enmity being the genesis as the

deceased being troubled by Appellant No.5 who prevented him driving and alighting him from bus at Chourai, establishes that the Appellants were

carrying grouse against him, goes to prove beyond doubt that the Appellant No.1 had caused firearm injury to Bhure @ Sanjeev who succumbed

to the injuries. The trial Court thus did not faultered in holding him guilty of causing murder of Bhure @ Sanjeev.

Further contentions that the evidence led by Laxminaryan (PW.5), Munnibai (PW.10) and Pushpabai (PW.11) cannot be relied upon as they

are father, mother and aunt of the deceased being close relative and their evidence cannot be treated to be creditworthy; when are tested on the

anvil of the entire fact situation that the house of the appellant no.1-accused Ramesh which is the scene of crime, being situated within the close

vicinity of house of the victim Laxminarayan (PW.5) and Munnibai (PW.10) being the Aunt who are jointly living the house their presence at the

scene of crime cannot be treated to be unnatural. There is no thumb rule that the evidence of victim''s close relative cannot be treated to be

creditworthy. The rule is that in case of close relative the evidence must be carefully scrutinized. In this context reference can be had of the decision

in Arjun Vs. State of Chhattisgarh (2017) 3 SCC 247, it is held:

11........... Where the prosecution case rests upon the evidence of a related witness, it is well-settled that the court shall scrutinize the evidence

with care as a rule of prudence and not as a rule of law. The fact of the witness being related to the victim or deceased does not by itself discredit

the evidence.

In the case of Mano Dutt and another Vs. State of Uttar Pradesh, (2012) 4 SCC 79, it is held:

33 The Court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party.

The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of

judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence

produced by the prosecution, oral or documentary, then the Court would not fall in error of law in relying upon the statements of such witness. It is

only when the Courts find that the single eye-witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of

corroboration can cure its defect. Reference in this regard can be made to the judgment of this Court, in the case of Anil Phukan v State of Assam

[(1993) 3 SCC 282].

When the entire evidence of Laxminaryan (PW.5), Munnibai (PW.10) and Pushpabai (PW.11) is closely scrutinized there is no iota of doubt that

there presence at the scene of crime is not by chance neither their version of the incident taking place in their presence can be doubted. In view

whereof, the contentions raised on behalf of appellants of discarding the evidence of Laxminaryan (PW.5), Munnibai (PW.10) and Pushpabai

(PW.11) stand negatived.

The question now is whether Appellants No. 2 to 5 shared common object with appellant no.1 to cause murder of Bhure @ Sanjeev.

Section 149 of the Indian Penal Code envisages that if an offence is committed by any member of an unlawful assembly in prosecution of the

common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every

person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. Thus, the elements of Section

149 are (I) commission of an offence by any member, of an unlawful assembly; (ii) commission of the offence in prosecution of the common object

of the unlawful assembly; (iii) the offence must be such as the members of the unlawful assembly knew to be likely to be committed in prosecution

of the common object.

In Haramant Laxmappa Kukkadi v. State of Karnatak, AIR 1994 SC 1546, it is observed that:

5..........The common object of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as

well as other surrounding circumstances.

In Amerika Rai & Ors. v. State of Bihar, (2011) 4 SCC 677, it is held:

The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to

achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.................

In Ramachandran & Ors. v. State of Kerala, (2011) 9 SCC 257, it is held :

17 Section IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting five or more members

and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that

assembly knew to be likely to be committed in prosecution of the common object.

In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the

unlawful assembly of which the accused were members. (Vide: Bhanwar Singh & Ors. State of M.P. 2008 (16) SCC 657) Even if the offence

committed is not in direct prosecution of the common object of the assembly, it may yet fall under second part of Section 149 IPC if it can be held

that the offence was such as the members knew was likely to be committed. The expression ""know"" does not mean a mere possibility, such as

might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the

land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and

would be guilty under the second part of Section 149 IPC. There may be cases which would come within the second part, but not within the first.

The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated. [See : Mizaji & Anr. v. State of U.P., AIR 1959 SC

572; and Gangadhar Behra & Ors. State of Orissa, AIR 2002 SC 3633].

However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful

assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of

other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other

members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. [See : Daya

Kishan v. State of Haryana, (2010) 5 SCC 81; Sikandar Singh v. State of Bihar, (2010) 7 SCC 477, and Debashis Daw v. State of W.B.,

(2010) 9 SCC 111].

The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons

entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether

the assembly consisted of some persons which were merely passive witnesses and had joined the assembly as a matter of idle curiosity without

intending to entertain the common object of the assembly.(Vide: Masalti v. State of Uttar Pradesh, AIR 1965 SC 202)

The law of vicarious liability under Section 149 IPC is thus crystal clear that even the presence in the unlawful assembly, but with an active

mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.

To bring home the guilt under Section 149 IPC, it must be established that incriminating act was done to accomplish the common object by

forming an unlawful assembly. In the case of Shaji and Others vs. State of Kerala, (2011) 5 SCC 423, it is held:

16..................In order to attract Section 149 IPC, it must be shown that the incriminating act was done to accomplish the common object of

unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object.

In the case at hand evident it is from the Dehati Nalashi (Exhibit P-4) prepared on the basis of report by Laxminarayan (PW-5) and First

Information Report (Exhibit P-25) that Appellants No. 2 to 5 were reportedly have come after Appellant No.1 who came out of his house with

315 bore rifle. The complainant clearly stated that ""VERNACULAR MATTER OMITTED"". Similar version is borne out from the FIR (Exhibit P-

25). Laxminarayan (PW-5) in his Court''s statement does not dispute of having lodged the complaint which was recorded as Dehati Nalashi

(Exhibit P-4) and on the basis thereof FIR (Exhibit P-25) was lodged. There is no whisper of Appellants No.2 to Appellant No.5 encircling the

deceased. Even the statement under Section 161 Cr.P.C. (Exhibit D-1) has recorded such an act. However, he improves the version in Court by

adding the fact as to Appellant No.2 to Appellant No.5 encircling the deceased and abusing him. Similarly, Munnibai (PW-10) and Pushpabai

(PW-11) have improved the version. In their Police statement Exhibit D-2 and Exhibit D-3. There is no mention of the fact of Appellants No.2 to

5 encircling the deceased and hurling abuses at him. It is thus doubtful whether Appellants No. 2 to Appellants No.5 ever formed part of unlawful

assembly. None of these eye witnesses has stated even in the Court of Appellants No.2 to 5 exhorting. Their presence in their own house and

coming out of the house on hearing the altercation is as natural as that of Laxminarayan (PW-5), Munnibai (PW-10) and Pushpabai (PW-11)

present at the scene of crime. There is thus no cogent admissible evidence to draw an inference that Appellant No. 2 to 5 constituted an unlawful

assembly and were sharing common object to kill Bhure. In view whereof the conviction of Appellants No.2 to 5 with the aid of Section 149 IPC

cannot be sustained, therefore, set-aside.

In the result, Appeal is partly allowed. While the conviction and sentence of Appellant No.1 Ramesh under Sections 147, 148 and 302 of IPC

is upheld. The conviction of Appellants No. 2 to 5 viz. Shivnarayan, Vinod, Krishnanaryan and Yogendra under Sections 147, 148, 302/149 of

IPC are set aside. Since the appellants No.2 to 5 are on bail, their presence are no more required before this Court and, therefore, it is directed

that their bail bonds shall stand discharged. A copy of the order be sent to the trial Court along with its record for information.