Vinod Rana vs State Of M.P.
2021 Latest Caselaw 1493 MP

                                  1                     Cra 1001/2011

             HIGH COURT OF MADHYA PRADESH
                       BENCH AT GWALIOR

                                PRESENT
                         DIVISION BENCH:
               SHEEL NAGU & VSHAL MISHRA JJ
                   (Criminal Appeal No.1001/2011)
                             Vinod Rana
                                  Vs.
                     State of Madhya Pradesh
      Shri D.R.Sharma, learned counsel for appellant.
      Shri      A.S.Ghuraiya,    learned   Public   Prosecutor    for
respondent-State.
      Shri Sameer Kumar Shrivastava, learned counsel for the
complainant.
                           JUDGMENT

(Delivered on the 22nd day of April, 2021) Sheel Nagu, J.

CONTEXT.

1. This criminal appeal filed u/S. 374 Cr.P.C. challenges

legality and propriety of the impugned judgment dated

11/10/2011 in S.T. No.84/1997 passed by Ninth Additional

Sessions Judge, Gwalior (M.P.) whereby appellant has been

convicted for an offence punishable u/s. 302 IPC and sentenced to

suffer life imprisonment with a fine of Rs. 20,000/- with default

stipulation.

2 Cra 1001/2011

2. Leaned counsel for rival parties are heard on the question

of final disposal.

3. Pertinently, FIR (Ex.P/1) was lodged on 31/10/1996 by

complainant PW-1 Heera Singh Tomar alleging offence of murder

against four accused Ajay @ Ajju, Vinod Rana (present

appellant), Kok Sing and one un-known person. Ultimately when

charge-sheet was filed after investigation, five persons were

arraigned as accused namely Raman Tiwari, Ajay @ Ajju Sharma,

Dhirendra, Kok Singh and Vinod Rana (appellant herein).

3.1 It may not be out of place to point out that appellant Vinod

Rana remained absconding for more than 3 years to be arrested

ultimately on 5/4/1999 vide P/29. As a result of which PW-1

complainant Heera Singh and PW-2 Sunil were subjected to

examination-in-chief in 1998/1999 (when appellant was

absconding) but were cross-examined qua appellant as late as in

2003, after more than 7 years of incident.

3.2 In the meantime, by judgment dated 28/3/2005 co-accused

Kok Singh was acquitted of the said charge of murder. However,

the trial against co-accused Raman Tiwari, Ajay @ Ajju Sharma

and Dhirendra Singh could not be concluded since they passed

away during the trial. While appellant Vinod Rana who was 3 Cra 1001/2011

absconding was tried after his arrest as late as on 5/4/1999 due to

which PW-1 Heera Singh, PW-2 Sunil, PW-3 Mahendra Singh

PW-4 Shivratan Singh and PW-5 Ratan Singh were subjected to

cross-examination after nearly 7 years of the incident.

FACTUAL MATRIX.

4. Prosecution story found to be proved against appellant in

short is that on 31/10/1996 at 4 pm complainant Heera Singh

PW-1 lodged FIR to the extent that on the same day at 3-45 pm

when he was proceeding towards Hazira alongwith his son

Lokendra @ Kallu (deceased) and his brother-in-law Sunil PW-2

and reached near the Grasim showroom, three accused Ajay

Sharma, Vinod Rana and one more person came on motorcycle

and surrounded the deceased. Co-accused Ajay @ Ajju Sharma

and his two companions also took out their respective firearms.

When complainant shouted, the deceased, to save himself rushed

into the Grasim showroom closely followed by the three

assailants including appellant. The complainant heard gunshot

and the deceased shouting for help from inside the showroom.

The deceased fell down injured whereafter co-accused Ajay

Sharma again caused gunshot injury in the eye of deceased.

Persons who were inside the showroom ran out, out of fright.

4 Cra 1001/2011

Whereafter assailants fled from the spot on the motorcycle. When

complainant went inside the showroom he saw his son lying dead

in pool of blood with two gunshot injuries on his body. FIR

further disclosed the motive that three days prior to the incident,

Kok Singh (one of the deceased accused) came in the house of

complainant Heera Singh to persuade him to change his statement

in the court in the trial concerning murder of complainant's

brother.

4.1 After conduction of investigation police submitted charge-

sheet on 11/2/1996 by invoking Sec. 299 Cr.P.C. in regard to

absconding accused including appellant.

4.2 In the trial Court, apart from tendering and proving

documentary evidence, the prosecution examined as many as 23

witnesses, namely, PW-1 Heera Singh Tomar, PW-2 Sunil, PW-3

Mahendra Singh, PW-4 Shivratan Singh, PW-5 Ratan Singh,

PW-6 Dr. P.K.Sharma, PW-7 Balveer Singh Chauhan, PW-8 Dr.

Madhup Kumar, PW-9 Rakesh Kumar Sharma, PW-10 Devsingh,

PW-11 R.B.Agrawal, PW-12 Damodar Singh, PW-13Hari Singh,

PW-14 Megh Singh, PW-15 R.B.Agrawal, PW-16 Kishan Singh

Rathore, PW-17 Indar Singh, PW-18 Santosh Singh, PW-19

Ramavatar, PW-20 Harnam Sngh, PW-21 Pramod Chaturvedi, 5 Cra 1001/2011

PW-22 D.S.Kushwah and PW-23 B.S.Parmar. Out of above said

PWs, PW-1 Heera Singh, PW-2 Sunil and PW-3 Mahendra Singh

are the eye-witnesses. On the other hand, appellant-accused did

not produce any evidence in support of defence and merely

pleaded false implication u/S. 313 Cr.P.C on the ground of past

animosity and appellant being friend of co-accused Ajay Sharma

@ Ajju.

EVALUATION OF EVIDENCE.

4.3. Charges were framed against all accused including

appellant for offences punishable u/Ss 302, in alternative 302/34,

in alternative 302/120-B IPC and S. 25(1-b) (A) of the Arms Act.

4.4 At the very outset, it may be point out that PW-1 Heera

Singh and PW-2 Sunil who were eye-witnesses to the incident in

their examination-in-chief supported the story of prosecution by

giving graphic representation of the incident with minor

contradictions/omissions/commissions which are insufficient to

discredit their testimony. The aspect of motive arising out of

murder of complainant's son has also been disclosed by both

these witnesses.

4.5 Importantly these two witnesses who were examined/cross-

examined qua other co-accused at the time when appellant had 6 Cra 1001/2011

not been arrested were produced again and subjected to cross-

examination in 2003 after nearly 6-7 years of the incident. Thus,

it was obvious that due to lapse of time between the date of

incident and the date of cross-examination qua appellant, these

two prime witnesses of prosecution though supported the basic

story of prosecution but made certain omissions/commissions/

contradictions which though ostensibly appear to discredit to

some extent the veracity of examination-in-chief but considering

lapse of time of nearly 6-7 years, the trial court in it's keen sense

of judgment found in para 37 of the impugned order that evidence

of these two prime witnesses (PW-1 & PW-2) cannot be

discredited merely on the basis of said contradictions/

omissions/commissions in their examination-in-chief as they

deserve laxity due to fading of memory owing to lapse of time

period between incident and the cross-examination which was 7

years.

4.6 At this juncture, it would be apt to refer decision of Apex

Court in Sadhu Saran Singh Vs. State of Uttar Pradesh & others

(2016) 4 SCC 357 wherein while dealing with similar issue raised by

the defence to discredit eye-witness's account merely on account of

delayed examination/cross-examination, it is observed as under:-

7 Cra 1001/2011

"23. Reason is the heartbeat of every conclusion, without proper reason the conclusion becomes lifeless. Having carefully considered the impugned judgment and order passed by the High Court as also that of the Trial Court and after perusing the records and giving anxious consideration to the facts of the case on hand in the light of well-settled law, in our considered opinion the judgment of the High Court deserves to be set aside on the ground of lack of reasoning and for the following compelling and substantial reasons.

24. The High Court had taken a view that PW 1

- Bhola Singh, father of the deceased (brother of the appellant before us) had changed his version at the time of second Chief Examination. Upon giving our anxious consideration to the chronology of events, we find that after commencement of the trial, the evidence of PW1 was started on 9.8.1996 and the chief-

examination was concluded on 21.8.1996. On 9.1.1997 the cross-examination was started and further on 29.5.1997 the second Examination-in- chief was started as some of the accused had surrendered before the Court in the meanwhile. Second time Examination-in-chief was conducted on 29.5.1997 and ended up on 19.06.1997.

Second Cross-examination started on 17.07.1997 8 Cra 1001/2011

which was further conducted on 24.7.1997. As seen from the various dates, the record indicates that the first chief-examination of PW 1, which started on 09.08.1996, was concluded after completing the second cross- examination on 24.7.1997. So, it is clear from the evidence of PW 1 itself that the examination and cross-

examination had taken place several times in a piece-meal manner and the Court was forced to conduct the chief- examination repeatedly because of the subsequent surrender of some of the accused persons. While appreciating the evidence of PW1, the Courts must be conscious of the length of time consumed in recording the evidence of the prosecution witness. From a perusal of the evidence of PW1, the High Court was of the opinion that there were discrepancies and deviations in the evidence of PW1. In our considered opinion, the evidence of PW 1, who is an eyewitness who lost three sons in the fateful incident was consistent and there are no major deviations or discrepancies and if at all any minor discrepancies that occurred in the evidence of PW1 might have been due to the long gap between the date of incident and the long delay in examination, more so, those discrepancies are not material in bringing home the guilt of the accused, we find no reason whatsoever to 9 Cra 1001/2011

disbelieve his evidence. The statements of PW 1 are fairly corroborated by the statements of PW 2. Hence, we are of the considered opinion that the occurrence had taken place in front of Baithaka of PW1--Bhola Singh and he had witnessed the said occurrence along with PW-2 Baijnath and the injured Ganga Singh."

4.7 More so, the fact of death having been found homicidal by

ocular and medical evidence has not been denied by the defence.

Dr. Madhup Kumar PW-8 has categorically supported

postmortem report, Ex.P/14 where 2 gunshot injuries each

comprising of entry and exist wounds were found on the body of

deceased. These gunshot injuries were found in the eye and back

of chest of deceased which corroborates the ocular evidence.

4.8 More so, PW-1 Heera Singh and PW-2 Sunil both the eye-

witnesses have denied all suggestions made by defence about

incident having not occurred or accused having been falsely

implicated or injuries as alleged not having been inflicted by the

appellant.

4.9 An argument has been extended by the defence that both

these PW-1 & PW-2 and also other witnesses including workers

in the Grasim showroom where incident occurred have

categorically deposed that due to glass curtain installed in the 10 Cra 1001/2011

front of the Grasim showroom, the activity inside the showroom

is not visible to a person standing outside. On this basis it is

submitted by learned counsel for appellant that testimony of both

these PW-1 & PW-2 to the extent of having seen the appellant

causing injury while standing outside, is unbelievable.

4.10 In this regard close scrutiny of testimony of PW-1 Heera

Singh & PW-2 Sunil and PW-3 Mahendra Singh reveals that

when deceased, to save himself from assault, rushed inside

Grasim showroom then all the three accused including appellant

were seen wielding firearms chasing the deceased and entering

the showroom. Immediately thereafter PW-1 & PW-2 testified

that they heard gunshots being fired and deceased screaming for

help. This led to commotion where people inside Grasim

showroom ran out followed by crowd collecting outside the

showroom. True it is that that PW-1 and PW-2 have stated that it

was Ajay Sharma @ Ajju who caused both gunshot injuries but

the active participation of appellant in the incident of murder has

been proved beyond reasonable doubt.

5. The appellant may not have caused the fatal injury but

certainly shared the common intention of murder with main

accused Ajju right from the commencement till culmination of the 11 Cra 1001/2011

incident. Thus, discussion qua common intention u/S. 34 IPC

assumes relevance.

5.1 The Apex Court in the case of Willie (William) Slaney Vs.

State of Madhya Pradesh (AIR 1956 SC 116) has succinctly

elaborated the connotation and parameters of the concept of

"common intention" to encompass cases involving active

participation in the commission of crime, meeting of minds prior

to or during course of incident and while doing so, the Apex

Court has emphasized the subtle but palpable distinction between

"similar intention" and "common intention" by sounding a

word of caution that both ought not to be understood to be

synonymous. Some of the Apex Court decisions explaining the

concept of "common intention" are extracted below:-

5.2 In the case of Willie (William) Slaney (supra) the Apex

Court has held as under :-

(77). ......there is much difference in the scope and applicability of sections 34 and 149, though they have some resemblance and are to some extent overlapping.

The two sections are again compared and contrasted in AIR 1954 SC 204 (J). Section 34 does not by itself createany offence, whereas it has been held that section 149 does. In a charge 12 Cra 1001/2011

under section 34, there is active participation in the commission of the criminal act; under section 149, the liability arises by reason of 'the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime."

(emphasis supplied)

5.3 In the case of Dukhmochan Pandey Vs. State of Bihar

reported in (1997) 8 SCC 405 the Apex Court has held as

under :-

"6. ........The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a pre-arranged plan which in turn pre-supposes a prior meeting of mind. But in a given case such common intention which developed at the spur of the moment is different from a similar intention actuated a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment. (See 13 Cra 1001/2011

Kripal Vs. State of U.P. reported in AIR 1954 SC 706, Pandurang Vs . State of Hyderabad reported in AIR 1955 SC 216 and Mohan Singh Vs. State of Punjab reported in AIR 1963 SC 174 ). The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice. ...."

5.4 In the case of Anil Sharma & Ors. Vs. State of Jharkhand

reported in AIR 2004 SC 2294 the Apex Court has held as

under :-

"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In 14 Cra 1001/2011

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. ......".

5.5 Now coming to the case in hand, it is apparent from perusal

of evidence on record that appellant not only accompanied main

assailant Ajju (since deceased) but also was wielding firearm.

Appellant alongwith Ajju surrounded the deceased and thereafter

chased the deceased inside the Grasim showroom where deceased

rushed to save himself. The evidence on record further disclosed

that when gunshots were fired by co-accused Ajju, the appellant

was very much present inside the showroom with main assailant

Ajju (deceased). Thereafter both rushed out of the showroom and

fled together on the same motorcycle alongwith other

companions. This sequence of events clearly demonstrates the

motive nursed by appellant right from beginning of the incident

up to its culmination. The intention was to murder the deceased.

There is no evidence to demonstrate that appellant nursed any 15 Cra 1001/2011

different intention than terminating life of deceased. The common

intention of murdering the deceased was omnipresent which was

shared by appellant with the main assailant Ajju in the act of

murder and therefore with the aid of Sec. 34 appellant is rightly

convicted for murder and sentenced to life imprisonment.

5.6 Thus, from the above discussion and analysis of the

material and evidence on record, this court has no manner of

doubt that prosecution was successful in establishing the charge

of murder against appellant with the aid of Sec. 34 IPC beyond

all reasonable doubts.

6. Accordingly, appeal stands dismissed. The impugned

judgment dated 11/10/2011 in S.T. No.84/1997 passed by Ninth

Additional Sessions Judge, Gwalior (M.P.) convicting appellant

for an offence punishable u/s. 302 IPC and sentencing him to

suffer life imprisonment with a fine of Rs. 20,000/- with default

stipulation calls for no interference and is upheld.

7. A copy of this judgment be sent to the trial court concerned

alongwith the record of this case for information.

                                                               (Sheel Nagu)                        (Vishal Mishra)
                                                                 Judge                                 Judge
DHANAN    Digitally signed by DHANANJAY BUCHAKE
          DN: c=IN, o=HIGH COURT OF MADHYA
          PRADESH BENCH GWALIOR, ou=HIGH
                                                                22/04/2021                            22/04/2021
JAY
          COURT OF MADHYA PRADESH BENCH

GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=6489e9ca230b3031a4b44a62193 4281f589875c02fb2a20e4220aebc8a3ba7e

BUCHAKE c, cn=DHANANJAY BUCHAKE

(Bu) Date: 2021.04.24 15:07:21 +05'30'