Lakhanlal vs State Of M.P.
2021 Latest Caselaw 6335 MP

                                  1
                    Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

            HIGH COURT OF MADHYA PRADESH
                   GWALIOR BENCH

                         DIVISION BENCH

                    G.S. AHLUWALIA
                           &
               DEEPAK KUMAR AGARWAL J.J.

                         Cr.A. No. 779/2009

                         Lakhanlal & Ors.

                                 Vs.

                           State of M.P.

Shri S.S. Kushwah, Shri Rajmani Bansal and Shri Harish Sharma,
Counsel for the appellants.
Shri C.P. Singh, Counsel for the respondent/State.

Date of Hearing                : 21-09-2021
Date of Judgment               : 04-10-2021
Approved for Reporting         :

                             Judgment

                            04-Oct-2021

Per G.S. Ahluwalia J.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 30-10-2009 passed by

Sessions Judge, Datia in S.T. No.30/2009, by which the appellants

have been convicted and sentenced for the following offences :

Conviction under Section Sentence 302/34 of I.P.C. Life Imprisonment and fine of Rs.2000/-

with default imprisonment of 3 months S.I.

2. The prosecution story in short is that on 27-10-2008, the

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

complainant Jitendra Singh Lodhi along with his injured father

Siyasharan Lodhi and Jaivendra lodged a report that at about 7:00

A.M., his father was sitting inside the house. The complainant was

also in the house. At that time, the appellants came there and they

were having Axe, Sickle and on account of old enmity, started

abusing his father. Lakhanlal assaulted him by axe on his head,

Manvendra also assaulted him by axe on the right side of his head,

Nirbhay also assaulted by axe causing injury on the front side of his

head and Mithlesh assaulted by sickle causing injury on the back side

of his waist. When the complainant tried to intervene, then Nirbhay

assaulted him by axe, thereby causing injury on right side of his head.

All the appellants also assaulted his father and the complainant by

fists and blows. They were saved by Neksiya Pal, Moolchand and

Jaivendra. Jaivendra also sustained injuries. While fleeing away, the

appellants also extended a threat that in case, report is lodged, then

they would be killed.

3. On the basis of complaint, the police registered the F.I.R.. The

complainant Jitendra, Jaivendra and the injured Siyasharan were sent

for medical examination. The dying declaration of Siyasharan was

recorded by Naib Tahsildar. Siyasharan died during his treatment. The

statements of the witnesses were recorded. Axe were seized from

Lakhanlal, Manvendra and Nirbhay. The police after completing the

investigation, filed charge sheet against the appellants for offence

under Sections 302, 307, 324, 452, 294, 506B, 34 of I.P.C.

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

4. The Trial Court by order dated 28-2-2009, framed charges

against appellants Lakhanlal, Nirbhay and Manvendra and by order

dated 23/3/2009 framed charges against appellant Smt. Mithlesh

under Sections 452, 302/34 and 324/334 of I.P.C.

5. The appellants abjured their guilt and pleaded not guilty.

6. The prosecution examined Parshuram (P.W.1), Moolchand

(P.W.2), Ram Milan (P.W.3), Neksaee (P.W.4), Ratiram (P.W.5),

Khachore (P.W.6), Komal Singh Patel (P.W.7), Dr. M.M. Shakya

(P.W.8), Jitendra Singh Lodhi (P.W. 9), Arvind (P.W.10),

Maithlisharan (P.W.11), Rajendra Kumar Dhruve (P.W. 12), Jaivendra

(P.W. 13), Dr. Ajay Gupta (P.W. 14), Ashok Bhatnagar (P.W. 15) and

Sunil Singh Kushwaha (P.W. 16).

7. The appellants did not examine any witness in their defence.

8. The Trial Court by the impugned judgment and sentence

convicted and sentenced the appellants for the offences mentioned

above. The appellants were acquitted for offence under Sections 452

and 324/34 of I.P.C.

9. Challenging the judgment and sentence passed by the Court

below, it is submitted by the Counsel for the appellants that all the

eye witnesses have turned hostile. Even the complainant has also

turned hostile. However, the appellants have been convicted on the

basis of dying declaration Ex. D.1. It is submitted that the Dying

Declaration, Ex. D.1 is not a reliable document. Further there are

material discrepancy in the dying declaration and the F.I.R., Ex. P. 13.

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

10. Per contra, it is submitted by the Counsel for the State that it

appears that there was a counter case. It appears that the matter was

compromised by the parties, and the complainant party turned hostile

in the present case, whereas the accused party turned hostile in their

case. However, it is incorrect to say that the Dying Declaration is a

suspicious document. It is further submitted that if the dying

declaration is reliable, then the conviction can be recorded on the said

sole circumstance.

11. Heard the learned Counsel for the parties.

12. Before adverting to the facts of the case, this Court would like

to find out as to whether the death of Siyasharan was homicidal in

nature or not?

13. Dr. Ajay Gupta (P.W.14) is an autopsy surgeon. He found the

following injuries on the dead body of the deceased Siyasharan :

(i) Surgically stitched wound on back of right ear 6 cm long with

8 stitches.

(ii) Abrasion 1 cm right of right eye 2x2 cm size.

(iii) Abrasion 1 cm above lateral end of right eyebrow 3 x 1 cm size

directed upward and medially.

(iv) Surgically stitched wound 2 cm above left eyebrow 2 cm away

from midline having 3 stitches, 2.5 cm long transverse.

(v) Stitched wound 5 cm above mid of injury no. 4 on left side "Y:

shaped having 2-2 stitches on each limb and upper limb 1 cm

long each and lower limb 2 cm long.

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

(vi) Stitched wound on left parietal eminence extending toward

occipital region 6 stitches evident 6 cm long.

(vii) Abrasion on left sub-scapular region laterally 5 x 2 cm size.

(viii) Surgically stitched wound, 2 cm above injury no. 1, 2cm

medial to medial end of injury no.1, 2.5cm long. 2.5 cm long

bone cut underneath and extending towards base of skull 6 cm

(fracture).

Margins of all stitched wound separated on pressure and

sharply cut. Hence, injuries are caused by sharp and cutting

object. Abrasions are caused by hard and blunt object or

surface.

(ix) Incised wound over left lumbar region on waist line from

midline towards left 6 cms long, lateral end having one stitch

(tailing on medial aspect).

All injuries are 5 to 6 days old. Head Injury is sufficient to

cause death in ordinary course of nature.

The death was due to cardio-respiratory failure as a result of

head injury.

Duration of death is within 6 to 24 hours of post-mortem

examination. The Post-mortem report is Ex. P.27.

14. This witness was cross examined, and he denied that the

injuries could be caused by fall. He further denied that fracture could

not have been noticed without getting the x-ray done. He further

stated that the signatures of witnesses who identified the dead body

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

are never taken.

15. Dr. M.M. Shakya (P.W.8) had conducted the MLC of

Siyasharan, and found the following injuries on his body :

(i) Incised wound with clotted blood 3 ½ x1 x 1cm over the scalp

on forehead in tr. Direction.

(ii) Incised wound with clotted blood along with profused bleeding

4 x 1 ½ x 1 cm over the ride side of scalp at parietal region in

longitudinal direction.

(iii) Incised wound with clotted blood along with profused bleeding

5 x 1 ½ x 1 cm over the occipital region in Tr. direction

muscle deep adhere to bone.

(iv) Incised wound with clotted blood 4 x 2 x 1 ½ cm over the left

side on back at waist part in Tr. Direction.

(v) Contusion with swelling 3 ½ x 2 cm over the face left size.

(vi) Lacerated wound with clotted blood and also profused

bleeding 2 x 1 x ½ cm over the left eyebrow in Tr. Direction.

(vii) Contusion with swelling 4 x 2 cm over the left thigh middle

part in Tr. Direction.

The M.L.C. report is Ex. P.9.

16. This witness was cross examined who clarified that first of all,

the injured Siyasharan was treated and only thereafter, M.L.C. was

done. He further stated that in case if the condition of the injured is

serious, then first of all, he is given treatment and only thereafter, his

M.L.C. is done. He further admitted that on the same day, he had

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

conducted M.L.C. of the appellants also. Siyasharan was brought for

M.L.C. at 11:50 A.M., but again clarified that earlier he was given

treatment. He further stated that M.L.C. was prepared after the dying

declaration was recorded by the Naib-Tahsildar. The dying

declaration of Siyasharan was recorded at about 9:30 A.M. and was

over by 9:45 A.M. The Dying Declaration was recorded in Hospital

Bhander. He further stated that he had given certificate regarding the

condition of the injured. He could not specify the time at which the

injured was referred to Gwalior. He denied that the deceased

Siyasharan could have sustained injuries on account of turning upside

down of Tractor. He denied that Siyasharan had no injury which was

dangerous to life. The injured Siyasharan was in full senses therefore,

his pulses etc were not recorded. As this witness had not brought

certain documents, therefore, his cross examination was deferred and

thereafter, in further cross-examination, this witness has clarified that

the injured Siyasharan was brought before him at 10 A.M. and his

treatment was immediately started and on 27-10-2008 itself, he was

referred to Gwalior after recording of dying declaration.

17. Thus, from the evidence of Dr. M.M. Shakya (P.W.8) and Dr.

Ajay Gupta (P.W.14) as well as from M.L.C., Ex. P.9 and Post-

mortem report, Ex. P.27, it is clear that the deceased Siyasharan had

died a homicidal death.

18. Now the moot question for consideration is that whether the

appellants are the perpetrator of offence or not?

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

19. Parshuram (P.W.1) had brought Merg Intimation, Ex. P.1, from

Police Station Kampoo, Gwalior and on the basis of same, merg,

Ex.P.2 was registered.

20. Moolchand (P.W.2), Ram Milan (P.W.3), Neksaee (P.W.4),

Ratiram (P.W.5), Komal Singh Patel (P.W. 7), Jitendra Singh Lodhi

(P.W.9), Arvind (P.W.10), Maithalisharan (P.W.11), and Jaivendra

(P.W. 13) turned hostile and did not support the prosecution case.

21. The entire prosecution case is based on Dying Declaration,

Ex.D.1.

22. Before considering the dying declaration, Ex.D.1, this Court

would like to consider the law relating to dying declaration.

23. The Supreme Court in the case of Laltu Ghosh v. State of

W.B., reported in (2019) 15 SCC 344 has held as under :

19. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. The doctor PW 18, who recorded the statement of the deceased which was ultimately treated as his dying declaration, has fully supported the case of the prosecution by deposing about recording the dying declaration. He also deposed that the victim was in a fit state of mind while making the said declaration. We also do not find any material to show that the victim was tutored or prompted by anybody so as to create suspicion in the mind of the court. Moreover, in this case the evidence of the eyewitnesses, which is fully reliable, is corroborated by the dying declaration in all material particulars. The High Court, on

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

reappreciation of the entire evidence before it, has come to an independent and just conclusion by setting aside the judgment of acquittal passed by the trial court.

The Supreme Court in the case of Ramesh Vs. State of

Haryana reported in (2017) 1 SCC 529 has held as under :

31. Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State (NCT of Delhi), this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (see Rambai v. State of Chhattisgarh).

32. It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man and there was no time to

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

call the police or the Magistrate. In such a situation the doctor would be justified, rather duty-bound, to record the dying declaration of the dying man. At the same time, it also needs to be emphasised that in the instant case, dying declaration is recorded by a competent Magistrate who was having no animus with the accused persons. As held in Khushal Rao v. State of Bombay, this kind of dying declaration would stand on a much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the court (see Vikas v. State of Maharashtra).

The Supreme Court in the case of Krishan Vs. State of

Haryana reported in (2013) 3 SCC 280 has held as under :

27. The judgment of this Court in Bhajju can usefully be referred again as it has some similarity on facts. There also two witnesses had turned hostile and a dying declaration was involved. Considering the cumulative effect of hostile witnesses and the reliability of a dying declaration, the Court held as under: (SCC pp. 340-42, paras 33-37) "33. As already noticed, none of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also notice that this very judgment, Munnu Raja relied upon by the accused itself clearly says that the dying declaration can be acted upon without corroboration and can be made the basis of conviction.

34. Para 6 of the said judgment reads as under: (Munnu Raja case, SCC pp. 106-07) '6. ... It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of Bombay).

The High Court, it is true, has held that the evidence of the two eyewitnesses corroborated the dying declarations but it did not come to the conclusion that

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.'

35. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant-accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross- examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination- in-chief, cross-examination by the prosecutor and cross- examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross- examination of the said witness insofar as it supports the case of the prosecution.

36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross- examination by the adverse party.

37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled canon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the following cases:

(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat,

(b) Prithi v. State of Haryana,

(c) Manu Sharma v. State (NCT of Delhi), and

(d) Ramkrushna v. State of Maharashtra."

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

28. Even in Mrinal Das v. State of Tripura this Court held as under: (SCC p. 506, paras 68-69) "68. In our case, the eyewitnesses including the hostile witnesses, firmly established the prosecution version. Five eyewitnesses, namely, PW 1, PW 4, PW 6, PW 7 and PW 8 clearly identified two convicts, appellants Tapan Das (A-5) and Gautam Das (A-11). PWs 1, 4, 7 and 8 identified accused Pradip Das (A-9). PWs 1 and 7 identified accused Somesh Das (A-7). PWs 1 and 4 identified Mrinal Das (A-4). PWs 4 and 8 identified Anil Das (A-1). It is clear that 6 accused persons including two convicts/appellants had been identified by more than one eyewitnesses. It is also clear that 6 accused could have been identified by the eyewitnesses though all of them could not have been identified by the same assailants. However, it is clear that two or more than two eyewitnesses could identify one or more than one assailants. The general principle of appreciating evidence of eyewitnesses in such a case is that where a large number of offenders are involved, it is necessary for the court to seek corroboration, at least, from two or more witnesses as a measure of caution. Likewise, it is the quality and not the quantity of evidence to be the rule for conviction even where the number of eyewitnesses is less than two.

69. It is well settled that in a criminal trial, credible evidence of even hostile witnesses can form the basis for conviction. In other words, in the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence." (emphasis supplied)

24. Thus, it is clear that even if the material witnesses have turned

hostile, and if the witnesses connected with dying declaration have

supported the prosecution story, then still the dying declaration can be

relied upon. Further, if the dying declaration is found to be reliable,

then the same can be sole basis for recording conviction.

25. Ashok Bhatnagar (P.W.15) is the Naib-Tahsildar who has

recorded the Dying Declaration, Ex.D.1 (It appears that Dying

Declaration was already exhibited as Ex.D.1 in the evidence of Dr.

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

M.M. Shakya (P.W.8).

26. This witness has stated that on 27-10-2008, he received an

information for recording the dying declaration and accordingly, he

went to hospital. He asked the name from injured who disclosed his

name as Siyasharan resident of Sikari, Police Station Pandokhar. At

the time, when he was asking questions to the injured, then his family

members as well as Dr. M.M. Shakya (P.W. 8) were present. Before

recording the dying declaration, he had obtained fitness certificate

from the Doctor who informed that the injured is in condition to

speak. The inured Siyasharan gave the dying declaration. He stated

that Siyasharan informed that he was sitting in his house. At that

time, Ratanlal, Manvendra, Nirbhay and wife of Lakhanlal came

there and they were armed with axe. Siyasharan also said that he

could not see that who had gave axe blow on his head. He further

informed that axe blow was also given below his waist. Then again

he asked that who gave axe blow, then there was some unclear voice

that Manvendra assaulted thrice on his head and below the waist. He

also stated in unclear voice that Lakhan had assaulted him.

27. Since, this witness was deposing contrary to what was

recorded by him, therefore, the Court asked that how he has stated

that he had heard an unclear voice, then it was replied by this witness

that he is saying out of his memory. He was further asked that on

what date he had joined the services, then it was replied that he had

joined on 12-11-1976. He further clarified that in Nov. 2002, he had

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

joined on the post of Naib-Tahsildar. Earlier he was posted in

Shivpuri, where he had recorded two dying declarations. He admitted

that he has not mentioned in the dying declaration, Ex. D.1 about the

unclear voice. He further tried to clarify that today, he recollected that

there was an unclear voice. He further admitted that he never

informed any senior officer, that the injured Siyasharan was speaking

in unclear voice. He denied that he is telling a lie that Siyasharan

was speaking in unclear voice.

28. In cross-examination by the defence Counsel, this witness

stated that he had recorded the dying declaration in the language of

the deceased. He further stated that he started the recording of dying

declaration at 9:30 A.M. and finished at 9:45 A.M. He sent the dying

declaration to the police on 27 th itself in a sealed envelop. He further

claimed that his hearing capacity is weak. However, he denied that

the relatives of the injured Siyasharan were interfering by speaking.

He further denied that after recording the dying declaration he had

gone to the Doctor and had requested him to sign the dying

declaration. He denied that the Doctor was not present at the time of

recording of dying declaration.

29. Thus, if the evidence of this witness is considered, then it is

clear that he has tried to mislead the Court by giving misleading

evidence. There is nothing in the dying declaration, Ex.D.1, that the

voice of the maker of dying declaration was not clear, however, it is

clear that this witness, gave a false evidence that the voice of

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

Siyasharan was not clear. Further, no note has been appended by the

Trial Court about the hearing capacity of this witness, but this

witness, without there being any basis, tried to help the appellants by

claiming that his hearing capacity is weak. This stand of the witness

about his weak hearing capacity is falsified from the fact, that he has

claimed to hear even an unclear voice of Siyasharan that he was

assaulted by Manvendra and Lakhan. In Dying Declaration, Ex. D.1,

the injured Siyasharan had stated that he was sitting in his house and

it was a morning time. Ratanlal, Manvendra, Nirbhay and wife of

Lakhanlal came along with axe and started abusing him. He was

assaulted by axe, however, could not see that who caused injury. Axe

blow was given on head and waist. Thereafter, he fell down. Initially,

Manvendra assaulted him. Three blows were given on his head and

was also assaulted below his waist and back. Lakhan had also

assaulted. In the Dying Declaration, it is mentioned that Ratanlal,

Manvendra, Nirbhay and wife of Lakhanlal came there and started

abusing him. It is true that in Dying Declaration, Ex. D.1, the name

of Ratanlal has been mentioned but it is not the case of the defence

that any person in the name of Ratanlal is available. No Ratanlal was

tried. In the F.I.R., the name of Lakhanlal is mentioned as one of the

assailants. Even in the Dying Declaration, Ex.D.1, it is mentioned

that Lakhan also assaulted Siyasharan. Further, the conduct of Ashok

Bhatnagar (P.W. 15) in the Court, clearly shows that he has no respect

for his duties. Although this witness has not written in the dying

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

declaration, Ex. D.1 that the voice of Siyasharan was not clear, but in

the examination-in-chief, this witness on his own stated that in an

unclear voice, Siyasharan had said that Manvendra and Lakhan had

assaulted him. When Siyasharan was speaking clear and loud, then

why he would disclose the names of the assailants in unclear voice?

It is not the claim of Ashok Bhatnagar (P.W.15), that the voice of

Siyasharan during the recording of dying declaration was unclear.

Further, it is not the evidence of Ashok Bhatnagar (P.W. 15) that he

could not hear that Manvendra and Lakhan had assaulted the injured

Siyasharan.

30. Further, Dr. M.M. Shakya (P.W. 8) was present at the time of

recording of Dying Declaration, Ex. D.1 and he had not only certified

the mental fitness of the injured but has specifically stated that pulse

was not recorded, because the injured was speaking. Thus, it is clear

that the injured Siyasharan was in fit state of mind and was well

oriented. Thus, it is held that the prosecution has succeeded in

proving the dying declaration, Ex. D.1 beyond reasonable doubt that

the appellants came together and they were armed with axe and all of

them started abusing the deceased and multiple injuries were caused

by Manvendra and Lakhan. The dying Declaration, Ex. D.1 finds full

corroboration from M.L.C., Ex. P.9 and Post-mortem report, Ex. P.27

according to which three incised wounds were found on the head and

one incised wound was found on the waist. Thus, it is held that the

prosecution has established that all the appellants came to the house

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

of the deceased. They were armed with axe and started abusing the

deceased and multiple incised wounds were caused. Since, in the

dying declaration, Ex. D.1 itself, it is mentioned that the injured was

assaulted by Manvenda and Lakhan, therefore, their participation is

proved beyond reasonable doubt.

31. The next question for consideration is that whether the

appellants Nirbhay and Mithlesh were sharing any common intention

or not?

32. In the present case, according to Dying Declaration, Nirbhay

and Mithlesh also came in the house of the deceased. They were

armed with axe. They all were abusing the injured/deceased. Thus, it

is clear that since, Nirbhay and Mithlesh were armed with axe and

they came inside the house of the injured/deceased and were abusing,

clearly shows that their intention was to commit actual offence. The

Supreme Court in the case of Hardev Singh Vs. State of Punjab

reported in (1975) 3 SCC 731 has held as under :

9..... The common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention. Then only others can be held to be guilty......

The Supreme Court in the case of Krishnan Vs. State reported

in (2003) 7 SCC 56 has held as under :

28. It is to be seen whether the accused persons in furtherance of their common intention caused the death of the deceased on the alleged date, time and place. A charge under Section 34 IPC presupposes the sharing of a particular intention by more than one person to commit a criminal act. The dominant feature of Section 34 is the

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a prearranged plan which is proved either from conduct or from circumstances or from incriminating facts. The principle of joint liability in the doing of a criminal act is embodied in Section 34 IPC.

The existence of common intention is to be the basis of liability. That is why the prior concert and the prearranged plan is the foundation of common intention to establish liability and guilt.

29. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself; for "that act" and "the act" in the latter part of the section must include the whole section covered by a "criminal act" in the first part, because they refer to it. Constructive liability under Section 34 may arise in three well-defined cases. A person may be constructively liable for an offence which he did not actually commit by reason of:

(1) the common intention of all to commit such an offence (Section 34) (2) his being a member of a conspiracy to commit such an offence (Section 120-A) (3) his being a member of an unlawful assembly, the members whereof knew that an offence was likely to be committed (Section 149). Section 34 is framed to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. The provision embodies the common-sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually.

30. In view of the factual aspects highlighted above, the inevitable conclusion is that accused Krishnan and Ganesan are equally liable for commission of the offence.

31. Applicability of Section 34 depends upon the facts and circumstances of each case. As such no hard-and-fast rule can be laid down as to the applicability or non-applicability of Section 34. For applicability of the section it is not necessary that the acts of several persons charged with commission of an offence jointly, must be the same or

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

The Supreme Court in the case of Preetam Singh Vs. State of

Rajasthan reported in (2003) 12 SCC 594 has held as under :

21. The next question is whether and to what extent the constructive criminal liability under Section 34 IPC can be fastened on Appellants 1 to 3 for causing the death of Pyara Singh. It is trite to say that a prearranged plan and the meeting of minds to commit a particular offence is the prerequisite to infer common intention. As observed in Krishna Govind Patil v. State of Maharashtra the prearranged plan may also develop on the spot during the course of commission of offence, yet, the crucial requirement is that such plan must precede the act constituting the offence. Therefore, it is settled law that although the common intention can develop on the spot, it should be the result of prior concert (vide Ramashish Yadav v. State of Bihar). Such prior concert can be inferred from the conduct of the accused revealing unity of purpose and the part played by them at the time of the occurrence, the injuries inflicted and other relevant factors......

The Supreme Court in the case of Subed Ali Vs. State of

Assam reported in (2020) 10 SCC 517 has held as under :

14. Common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established. There can hardly be any direct evidence of common intention. It is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants.

15. The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction, without actual participation in the assault. It is, therefore, not necessary that before a person is convicted on the ground of common intention, he must be

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

actively involved in the physical activity of assault. If the nature of evidence displays a prearranged plan and acting in concert pursuant to the plan, common intention can be inferred. A common intention to bring about a particular result may also develop on the spot as between a number of persons deducible from the facts and circumstances of a particular case. The coming together of the accused to the place of occurrence, some or all of whom may be armed, the manner of assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences.

16. In Ramaswami Ayyangar v. State of T.N., in order to establish common intention it was observed as follows: (SCC p. 783, para 12) "12. ... The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the execution of the common design. Such a person also commits an "act" as much as his coparticipants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the "criminal act". The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them."

17. In Nandu Rastogi v. State of Bihar, with regard to the inference for common intention this Court observed as follows: (SCC p. 16, para 17) "17. ... They came together, and while two of them stood guard and prevented the prosecution witnesses from intervening, three of them took the deceased inside and one of them shot him dead. Thereafter they fled together. To attract Section 34 IPC it is not necessary that each one of the accused must assault the

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts, similar or diverse."

18. In Surendra Chauhan v. State of M.P., it was noticed that absence of a positive act of assault was not a necessary ingredient to establish common intention observing: (SCC p. 117, para 11) "11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them."

19. A similar view was taken in Nand Kishore v. State of M.P.

33. Thus, it is clear that the role played by each and every accused

would determine as to whether they were sharing common intention

with preconceived concept or not? According to Dying Declaration,

Ex.D.1, all the four appellants came together, each of them was

armed with axe and they were also abusing the injured and at that

time, assault was made on the injured. This act of Nirbhay and

Mithlesh clearly establishes that they were sharing common intention

with premeditated plan. Even otherwise, the presence of Mithlesh on

the spot is also proved beyond any reasonable doubt. From the order

sheets of the Trial Court, it is clear that on 18-3-2009, a stand was

taken by Mithlesh that she too has suffered injuries in cross case.

Thus, the dying declaration Ex. D.1 so far as it relates to the presence

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

of the appellants is also supported by the fact that cross case

No.134/2008 was also registered against the complainant party.

Thus, Nirbhay and Mithlesh are also vicariously liable for the act of

Manvendra and Lakhan.

34. Accordingly, all the appellants are held guilty of committing

murder of Siyasharan and accordingly, their conviction for offence

under Section 302/34 of I.P.C. is upheld. Since, the minimum

sentence for offence under Section 302 of I.P.C. is life imprisonment,

therefore, the jail sentence awarded by the Trial Court, does not call

for any interference.

35. Ex Consequenti, the judgment and sentence dated 30-10-2009

passed by Sessions Judge, Datia in S.T. No.30/2009 is hereby

Affirmed.

36. The appellants Nirbhay and Mithlesh were granted bail by

order dated 18-12-2009. Their bail bonds are hereby cancelled. They

are directed to immediately surrender before the Trial Court, for

undergoing the remaining jail sentence.

37. The appellant Manvendra is in jail. He shall undergo the

remaining jail sentence.

38. The appellant Lakhanlal was granted temporary bail by order

dated 15-1-2021 and on 9-4-2021, a statement was made that the

appellant Lakhanlal could not avail the benefit of interim bail granted

by this Court, but he was released on parole in the light of the order

passed by the Supreme Court and now he has surrendered on 7-2-

Lakhanlal & Ors. Vs. State of M.P. (Cr.A. No.779/ 2009)

2021. Accordingly, the surrender report was called and the

Superintendent, Central Jail, Gwalior by its letter dated 3-5-2021 has

informed that the appellant Lakhanlal was released on temporary

parole on 31-3-2021 till 7-2-2021 and he had surrendered on 7-2-

2021 and now he is again on parole from 22-4-2021 till 7-5-2021.

however, there is nothing on record to suggest that whether Lakhanlal

has surrendered after the period of parole was over or not? Thus, it is

directed that if the appellant no.1 Lakhanlal has surrendered after the

period of parole was over i.e.,7-5-2021, then he shall undergo the

remaining jail sentence. However, if the appellant Lakhanlal has not

surrendered or his parole has been extended, then he shall

immediately surrender before the Trial Court, for undergoing the

remaining jail sentence.

39. The office is directed to supply a copy of this judgment to the

appellant Manvendra and Lakhanlal immediately.

40. The record of the Trial Court be sent back immediately with

copy of this judgment for necessary information and compliance.

41. The appeal is Dismissed.

(G.S. Ahluwalia)                                            (Deepak Kumar Agarwal)
          Judge                                                             Judge

                              ARUN KUMAR MISHRA
                              2021.10.04 17:33:28 +05'30'