Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Testimony Of Witnesses Can Not Be Brushed Asied On The Ground Of Relation With The Deceased/ Victim.
JUDGEMENT TITLE : Bhagwan Das & Another Vs. State Of U.P. On 22/07/2008 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 2496 OF 1984
CORAM : Hon'ble Sushil Harkauli,J. And Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED


Criminal Appeal No. 2496 Of 1984


1.Bhagwan Das (died During Appeal) ........ }
2.Shanker @ Sheo Shanker........................ } Appellants.

Versus
State Of U.P. .................. Respondent.


with

Criminal Appeal No. 2934 Of 1984


Sheo Mohan........................... Appellant.

Versus
State Of U.P. .................. Respondent.




Hon'ble Sushil Harkauli, J.
Hon'ble Vijay Kumar Verma, J.

(Delivered By Hon'ble Vijay Kumar Verma, J.)

Challenge In These Appeals, Preferred Under Section 374(2) Of The Code Of Criminal Procedure (in Short, 'the Cr.P.C.'), Is To The Judgement And Order Dated 05.09.1984, Passed By The Sessions Judge, Kanpur In S.T. No. 466/M Of 1983 (State Vs. Bhagwan Das And Others), Whereby Convicting The Appellant Sheo Mohan Under Section 302 Of Indian Penal Code (in Short, 'the I.P.C.') And Separately Convicting The Appellants Bhagwan Das And Shankar @ Sheo Shanker Under Section 302 Read With Section 34 I.P.C., They All Have Been Sentenced To Undergo Imprisonment For Life.
2.During Pendency Of The Appeal, The Appellant Bhagwan Das Has Died And Hence The Appeal Stands Abated Against Him.
3.The Incident Resulting In The Death Of Ishwardeen, Husband Of The Complainant Smt. Kamla (P.W. 1), Took Place On 18.08.1983 At About 9.15 P.m. On The 2nd Floor Of House No. 86/252 Garg Road, Raipurwa, Kanpur. First Information Report Was Lodged By Smt. Kamla At P.S. Raipurwa In The Same Night At 9.45 P.m. The Case Of The Prosecution As Appearing From The Chik F.I.R. Ext. Ka-2, In Brief, Is That The Complainant Smt. Kamla With Her Husband Ishwardeen And Other Family Members Was Residing On Second Floor Of Tenanted House No. 86/252 Garg Road, Raipurwa, Kanpur Owned By Bhagwan Das S/o Kashi Prasad Jaiswal. The Landlord Bhagwan Das And His Son-in-law Sheo Mohan Resident Of Moti Mohal, P.S. Harbans Mohal Were Also Residing With Their Family Members On The First Floor And Other Tenants Were Residing On The Ground Floor. Sheo Mohan Was Asking The Complainant's Husband To Pay The Rent To Him Or Vacate The House. He Used To Say That The House Has Been Transferred To Him. When The House Was Not Vacated, A Suit For Eviction Was Filed By Bhagwan Das. For This Reason, Bhagwan Das And Sheo Mohan Were Having Enmity With The Complainant's Family. It Is Alleged That When On 18.08.1983 At About 9.15 P.m., Ishwardeen Sat To Take Dinner And His Wife Smt. Kamla Was Going To Serve The Meal And His Son Subhash (P.W. 2) Was Sitting Nearby, The Accused Bhagwan Das, Sheo Mohan And His Elder Brother Shanker And One Unknown Person Came There. At That Time, There Was Electric Light. Immediately After Reaching At The House Of Complainant, Bhagwan Das Exhorted Sheo Mohan Saying, "Ishwar Deen Aise Makan Khali Nahin Karega. Aaj Iska Safaya Hee Kar Do." On This, Shanker And Unknown Person Caught Hold Of Ishwardeen And Sheo Mohan Gave Knife Blows To Him, Due To Which He Sustained Serious Injuries. Thereafter, The Accused Persons Fled Away From There.
4.The Complainant Smt. Kamla Got The Written Report, Ext. Ka-1 Scribed By Her Son Subhash And Carried Her Injured Husband To P.S. Raipurwa And Handed Over The Written Report There. On The Basis Of This Report, The Then Constable Moharrir, Ramesh Chandra (P.W. 3) Prepared Chik F.I.R. Ext. Ka-2 And Registered A Case Under Section 307 I.P.C. At Crime No. 187 Of 1983 On 18.08.1983 At 9.45 P.m. Against Bhagwan Das, Sheo Mohan And His Elder Brother Shanker And One Unknown Person And Made Entry In The G.D. (Ext. Ka-3). Injuries Of Ishwardeen Were Also Noted In This G.D. Thereafter, Ishwardeen Was Sent To The Hospital, But Before Reaching There, He Succumbed To The Injuries In The Way. Hence, The Case Was Converted Under Section 302 I.P.C. Vide G.D. Entry Ext. Ka-4 In The Same Night At 11.30 P.m.
5.The Case Was Registered In Presence Of S.S.I. Ram Swarup Singh Yadav (P.W.-4). Investigation Was Entrusted To Him. He Started The Investigation At The Police Station Itself And After Recording The Statement Of The Then Constable Moharrir Ramesh Chand Pandey, Arrest Of The Accused Bhagwan Das Was Made At About 11.00 P.m. He Went To The Hospital On 19.08.1983 And Conducted Inquest Proceedings On The Dead Body Of The Deceased Ishwardeen, During Which Inquest Report Ext. Ka-5 And Connected Papers Challan Lash Ext. Ka-6, Photo Lash Ext. Ka-7, Report CMO Ext. Ka-7-A And Report R.I. Ext. Ka-8 Were Prepared And Thereafter, The Dead Body Was Sent In Sealed Condition For Post-mortem Examination, Which Was Conducted By Dr. J. P. Mittal (P.W. 5) On 19.08.1983 At 2.00 P.m. The Following Ante-mortem Injuries Were Found On The Person Of Deceased:-
(1) Incised Wound 10 Cm X 2 Cm X Muscle Deep On The Left Side Of Chest, 1cm Below Left Nipple.

(2) Incised Wound 6 Cm X 2 Cm X Chest Cavity Deep, Just Below Injury No. (1).

(3) Incised Wound 4 Cm X 1 ½ Cm X Chest Cavity Deep In The Centre Of Chest Below Injury No. (2).

(4) Incised Wound 3½ Cm X 1 Cm X Chest Cavity Deep, 10 Cm Below Left Nipple.

(5) Incised Wound 9 Cm X 2 Cm X Muscle Deep 10 Cm Above Left Iliac Crest At Lateral Front Part Of Left Side Of Abdomen.

(6) Incised Wound 8 Cm X 1½ Cm X Muscle Deep At 7 Cm Left Side Of Abdomen From Umblicus.

(7) Incised Wound 5 Cm X 1 Cm X Skin Deep On Left Side Of Abdomen, 10 Cm Above The Umblicus.

(8) Incised Wound 3 Cm X 1 Cm X Muscle Deep At Left Side Of Back 17 Cm Below Root Of Neck.

(9) Incised Wound 2½ Cm X 1 Cm X Bone Deep On Right Side Of Infra Axillary Area.

6th And 7th Left Ribs Were Cut Due To Ante-mortem Injury No. 3. Walls And Peritoneum Were Ruptured Due To Injury No. 4. About 3 Ozs. Of Liquified Blood Was Present In The Cavity. 15/16 Left Upper I Molar Was Found Missing. Semi-digested Food About 4 Ozs. Was Found Present In The Stomach. Small And Large Intestines Were Half Full With Gases. Liver Was Punctured At Two Sits. Spleen Was Also Punctured Due To Injury No. 4.
According To The Post-mortem Report Ext. Ka-15 Prepared By Dr. Mittal, The Death Of The Deceased Was Caused Due To Shock And Haemorrhage As A Result Of Ante-mortem Injuries. Time Of Death Was About One Day At The Time Of Post-mortem Examination.
6.During The Course Of Investigation, S.S.I. Ram Swarup Singh Yadav Recorded The Statements Of Smt. Kamla And Subhash On 19.08.1983 And Prepared Site Plan Ext. Ka-9. From The Place Of Occurrence, He Took Blood Stained And Simple Pieces Of Cement Plaster Vide Recovery Memo Ext. Ka-10, Which Were Sealed And Sent To Chemical Examiner For Examination. One Blood Stained Bread (roti) Was Also Found At The Spot, Which Was Also Taken Into Possession And Sent To Chemical Examiner. The Investigating Officer Continued To Make Search Of The Accused Sheo Mohan And Shanker And When They Could Not Be Arrested, Warrants (Ext. Ka-12 And Ka 13) Under Section 82/83 Cr.P.C. Were Obtained, But Prior To The Execution Of These Warrants, The Accused Sheo Mohan Surrendered In The Court. After Extensive Investigation, Chargesheet Ext. Ka-14 Was Submitted Against The Accused Bhagwan Das And Sheo Mohan Showing The Accused Shanker As An Absconder. This Accused Surrendered In The Court Subsequently.
7.On The Case Being Committed To The Court Of Session For Trial, Charge Under Section 302 I.P.C. Against The Accused Sheo Mohan And Separate Charge Under Section 302 Read With Section 34 I.P.C. Against The Accused Bhagwan Das And Shanker @ Sheo Shanker Were Framed, To Which They Pleaded Not Guilty And Claimed To Be Tried.
8.The Prosecution In Order To Prove Its Case, Examined Five Witnesses In All. P.W. 1 Kamla Devi And P.W. 2 Subhash Are The Eyewitnesses Of The Incident. Smt. Kamla Is The Wife Of The Deceased, Who Had Lodged The F.I.R. Regarding The Said Incident At P.S. Raipurwa, Kanpur. P.W. 2 Subhash Is The Son Of The Deceased. P.W. 3 Ramesh Chand Was Posted As Constable Moharrir At P.S. Raipurwa. He Scribed The Chik F.I.R. Ext. Ka-2 And G.D. Of The Registration Of The Case, Copy Whereof Is Ext. Ka-3. He Is Also The Scribe Of G.D. Ext. Ka-4 Of Converting The Case Under Section 302 I.P.C. Ext. Ka-2, Ka-3 And Ext. Ka-4 Have Been Proved By This Witness In His Statement. P.W. 4 S.S.I Ram Swarup Singh Yadav Is The Investigating Officer, Who Has Proved The Papers Mentioned Herein-above. P.W. 5 Dr. J. P. Mittal Had Conducted Post-mortem Examination Of The Dead Body Of The Deceased. He Has Proved The Post-mortem Report Ext. Ka-15.
9.In Their Statements Recorded Under Section 313 Cr.P.C., The Accused Persons Have Denied Their Participation In The Alleged Incident And They Have Stated That Due To Enmity They Have Been Falsely Implicated In This Case.
10. After Examination Of The Accused Persons Under Section 313 Cr.P.C., Opportunity To Lead Evidence In Defence Was Given To Them, But They Did Not Examine Any Witness. However, Six Papers Have Been Filed On Behalf Of The Accused Persons At The Time Of Examination Of The Accused Shanker @ Sheo Shanker Under Section 313 Cr.P.C., Which Are Papers 59-B To 64-B In Lower Court Record.
11.We Have Heard Sri Gopal Swarup Chaturvedi, Learned Senior Counsel Assisted By Sri A. S. Pandey, Advocate Appearing For The Appellants And Sri R. K. Singh, Learned A.G.A. For The State And Perused The Entire Record Carefully.
12. Regarding The Incident In Which Injuries Resulting In The Death Of Deceased Ishwardeen Were Caused, The Prosecution Has Examined Two Eyewitnesses Namely Smt. Kamla Devi P.W. 1 And Subhash P.W.2. They Both Are The Inmates Of The House In Which The Incident Had Taken Place And As Such, They Are Natural Witnesses. Placing Reliance On The Testimony Of These Witnesses, The Learned Trial Court Vide Its Impugned Judgement Has Convicted And Sentenced The Appellants-accused As Mentioned Herein-above. We Have Carefully Gone Through The Statements Of These Witnesses And We Do Not Find Any Infirmity In Their Testimony. P.W. 1, Smt. Kamla Devi Is The Wife Of The Deceased. She Has Stated In Her Statement That When On The Fateful Day At About 9.00 P.m., She Was Serving Meal To Her Husband Ishwardeen And Her Son Subhash And Other Two Children Were Also Present There, The Accused Shanker, Sheo Mohan, Bhagwan Das And One Unknown Person Came To Her House And On The Exhortation Of Bhagwan Das, The Accused Shanker And Unknown Person Caught Hold Of Her Husband And Sheo Mohan Gave 7-8 Blows To Him By Knife, Due To Which He Sustained Serious Injuries And When He Was Being Carried To The Hospital After Lodging The F.I.R., He Died In The Way Before Reaching The Hospital. It Is Also Stated By This Witness That There Was Electric Light Inside And Outside The House. During Cross-examination, It Is Stated By P.W. 1 That Both The Hands Of Her Husband Were Caught By Shanker And Unknown Persons, Due To Which He Could Not Resist The Blows By His Hands. Lengthy Cross-examination Has Been Made From This Witness On Behalf Of The Accused Persons, But Nothing Material Could Be Elicited In Her Cross-examination. She Has Fully Supported The F.I.R. Version And On The Basis Of Her Testimony, It Is Fully Proved Beyond Reasonable Doubt That Injuries Were Caused To Her Husband Ishwardeen By The Accused Sheo Mohan In The Incident That Had Occurred At About 9.00 P.m. In Her House And It Is Also Established Beyond Any Doubt That At The Time Of Giving Knife Blows To Her Husband, Both His Hands Were Caught By The Accused Shanker @ Sheo Shanker And Unknown Person.
13. P.W. 2 Subhash Is The Son Of The Deceased And He Was Present In The House At The Time Of Incident. He Has Corroborated The Statement Of His Mother In His Statement. It Is Stated By Him That On The Fateful Day At About 9.00 Or 9.15 P.m., When His Father Had Sit To Take Dinner And His Mother Was Serving The Meal, On The Exhortation Of Accused Bhagwan Das, The Accused Shanker And Unknown Person Caught Hold Of His Father And Sheo Mohan Gave 8-9 Knife Blows To Him. It Is Further Stated By This Witness That When After Lodging The F.I.R., His Father Was Being Carried To The Hospital, He Died In The Way. Nothing Material Has Been Elicited From This Witness Also In His Cross-examination. There Is No Material Contradiction In The Statements Of Aforesaid Witnesses And On The Basis Of Their Reliable Testimony, It Is Fully Proved Beyond Reasonable Doubt That On Catching Hold Of The Hands Of Deceased Ishwardeen By The Accused Shanker And Unknown Person, The Accused Sheo Mohan Had Given 8-9 Blows To Him By Knife, Due To Which He Sustained Serious Injuries And When He Was Being Carried To The Hospital After Registration Of The F.I.R. At P.S. Raipurwa, Kanpur, He Succumbed To The Injuries In The Way.
14. The Oral Evidence Of P.W. 1 And P.W. 2 Is Corroborated By The Medical Evidence. At The Time Of Postmortem Examination Of The Dead Body Of The Deceased, Nine Ante-mortem Incised Wounds Were Found On His Person, Which We Have Mentioned Herein-above. According To Dr. J. P. Mittal, P.W. 5, These Injuries Were Possible To Be Caused By Knife At About 9.15 P.m. On 18.08.1983. The Postmortem Examination Was Conducted On 19.08.1983 At 2.00 P.m. Although Time Since Death Has Been Shown As One Day In The Postmortem Report Ext. Ka-15, But It Is Stated By Dr. Mittal In Cross-examination That There May Be Margin Of About Six Hours Either Way In The Time Of Death As Noted In The Post-mortem Report. As Such, On The Basis Of The Post-mortem Report Also, It Is Established That Ante-mortem Injuries Of The Deceased Were Possible To Be Caused On 18.08.1983 Near About 9.00 P.m.
15. At The Time Of Making Spot Inspection By The Investigating Officer Ram Swarup Singh Yadav (P.W. 4) On 19.08.1983, Blood Was Found Lying At The Place Of Occurrence. Blood Stained And Simple Pieces Of Cement Plaster Were Taken Into Possession. One Blood Stained Bread (roti) Was Also Found There, Which Too Was Taken Into Possession. These Articles Were Sent For Chemical Examination To The Forensic Science Laboratory, Uttar Pradesh, Agra. The Report Of The Chemical Examiner Is Annexed In Lower Court Record, Which Is Paper No. 51-A. In View Of The Provisions Of Section 293 Cr.P.C., This Report Can Be Read In Evidence Without Its Formal Proof. This Report Shows That Human Blood Was Found On The Cement Plaster, Bread, Lungi And Underwear Of The Deceased. As Such, From This Report Also, It Is Established That The Incident Had Taken Place In The House Of The Deceased, Where Human Blood Was Found Lying.
16. The Testimony Of The Witnesses Smt. Kamla Devi And Subhash Was Assailed By The Learned Counsel For The Appellants Contending That Their Testimony Could Not Be Relied Upon For Convicting The Appellants, As They Both Are Interested Witnesses Being The Wife And Son Of The Deceased. It Was Also Submitted By The Learned Counsel That In The Absence Of The Evidence Of Any Independent Witness, It Is Not Safe To Place Reliance On The Testimony Of P.W. 1 And P.W. 2. We Are Not At All Impressed With These Contentions. As We Have Mentioned Above, Both The Witnesses, Being The Inmates Of The House Where The Incident Had Taken Place, Are Natural Witnesses, Whose Testimony Also Is Cogent, Credible And Trustworthy. Hence, Their Testimony Cannot Be Discarded Merely On The Ground That They Are Related To The Deceased. The Law Is Well Settled That If The Testimony Of Any Witness Is Found Worthy Of Credence, Then His Testimony Cannot Be Brushed Aside On The Ground That He Is Related To The Deceased Or Victim.
17. In The Case Of Dalip Singh And Others Vs. State Of Punjab (AIR 1953 SC 364), It Has Been Laid Down As Under By The Hon'ble Apex Court:-
"A Witness Is Normally To Be Considered Independent Unless He Or She Springs From Sources Which Are Likely To Be Tainted And That Usually Means Unless The Witness Has Cause, Such As Enmity Against The Accused, To Wish To Implicate Him Falsely. Ordinarily A Close Relation Would Be The Last To Screen The Real Culprit And Falsely Implicate An Innocent Person. It Is True, When Feelings Run High And There Is Personal Cause For Enmity, That There Is Tendency To Drag In An Innocent Person Against Whom A Witness Has A Grudge Along With The Guilty, But Foundation Must Be Laid For Such A Criticism And The Mere Fact Of Relationship Far From Being A Foundation Is Often A Sure Guarantee Of Truth. However, We Are Not Attempting Any Sweeping Generalization. Each Case Must Be Judged On Its Own Facts.


18. Again In Masalti And Others V. State Of U.P., AIR 1965 SC 202, The Hon'ble Apex Court Observed As Under:-
"But It Would, We Think, Be Unreasonable To Contend That Evidence Given By Witnesses Should Be Discarded Only On The Ground That It Is Evidence Of Partisan Or Interested Witnesses............. The Mechanical Rejection Of Such Evidence On The Sole Ground That It Is Partisan Would Invariably Lead To Failure Of Justice. No Hard And Fast Rule Can Be Laid Down As To How Much Evidence Should Be Appreciated. Judicial Approach Has To Be Cautious In Dealing With Such Evidence; But The Plea That Such Evidence Should Be Rejected Because It Is Partisan Cannot Be Accepted As Correct."


19. The Above Decision Has Been Followed In Guli Chand And Others V. State Of Rajasthan 1974(3) SCC 698, In Which Vadivelu Thevar V. State Of Madras AIR 1957 SC 614 Was Also Relied Upon.

20. The Following Observations Made By The Hon'ble Apex Court In Israr Vs. State Of U.P. (2005 (51) ACC 113) In Para 12 Of The Judgement Are Also Worth Mentioning:-
".........Relationship Is Not A Factor To Affect Credibility Of A Witness. It Is More Often Than Not That A Relation Would Not Conceal The Actual Culprit And Make Allegations Against An Innocent Person. Foundation Has To Be Laid If Plea Of False Implication Is Made. In Such Cases, The Court Has To Adopt A Careful Approach And Analyse Evidence To Find Out Whether It Is Cogent And Credible."

21. The Above Position Has Been Highlighted Again In Galivenkataiah Vs. State Of A.P. 2008 (60) ACC 370, In Which Reference Has Been Made To Some Other Cases Also.
Having Regard To The Observations Made By The Hon'ble Apex Court In The Cases Mentioned Above, In Instant Case Also, The Testimony Of Smt. Kamla Devi, And Subhash Cannot Be Brushed Aside On The Ground That They Are Near Relatives Of The Deceased, As Their Testimony Is Wholly Reliable, Which Finds Corroboration From The Medical And Other Evidence On Record.
22. In Our Considered View, The Testimony Of The Witnesses Smt. Kamla And Subhash Can Also Not Be Discarded Due To Non-examination Of Any Independent Witness, As Generally The People Avoid To Appear As Witness Even If They Have Witnessed The Incident. The Hon'ble Apex Court In The Case Of Appa Bhai And Another Vs. State Of Gujarat (AIR 1988 SC 696), In Para 11 Of The Judgement Has Observed As Under:-
"..........................Experience Reminds Us That Civilized People Are Generally Insensitive When A Crime Is Committed Even In Their Presence. They Withdraw Both From The Victim And The Vigilante. They Keep Themselves Away From The Court Unless It Is Inevitable. They Think That Crime Like Civil Dispute Is Between Two Individuals Or Parties And They Should Not Involve Themselves. This Kind Of Apathy Of The General Public Is Indeed Unfortunate, But It Is There Everywhere Whether In Village Life, Towns Or Cities. One Cannot Ignore This Handicap With Which The Investigating Agency Has To Discharge Its Duties. The Court, Therefore, Instead Of Doubting The Prosecution Case For Want Of Independent Witness Must Consider The Broad Spectrum Of The Nugget Of Truth With Due Regard To Probability, If Any, Suggested By The Accused."

23. In The Case Of Krishna Mochi Vs. State Of Bihar (2002 SCC (Cri) 1220), The Hon'ble Apex Court In Para 31 Of The Judgement Has Made The Following Observations:-
"It Is A Matter Of Common Experience That In Recent Times There Has Been A Sharp Decline Of Ethical Values In Public Life Even In Developed Countries Much Less A Developing One, Like Ours, Where The Ratio Of Decline Is Higher. Even In Ordinary Cases, Witnesses Are Not Inclined To Depose Or Their Evidence Is Not Found To Be Credible By Courts For Manifold Reasons. One Of The Reasons May Be That They Do No Have Courage To Depose Against An Accused Because Of Threats To Their Life, More So When The Offenders Are Habitual Criminals Or High-ups In The Government Or Close To Powers, Which May Be Political, Economic Or Other Powers Including Muscle Power."


24. Moreover, In The Instant Case, It Has Come In The Statements Of P.W. 1 And P.W. 2 That Even After Raising Hue And Cry By Them, No Person Came At The Place Of Incident. Therefore, Having Regard To This Fact Also, The Testimony Of The Aforesaid Eyewitnesses Cannot Be Discarded Due To Non-examination Of Any Other Independent Witness.
25. It Was Further Contended By The Learned Counsel For The Appellants That Conviction Of The Accused-appellant Shanker @ Sheo Shanker For The Offence Punishable Under Section 302 I.P.C. With The Aid Of Section 34 I.P.C. Is Bad In Law, Because The Prosecution Has Failed To Establish That The Accused Persons Had Come On The Place Of Incident With Common Intention To Commit The Murder Of Ishwardeen. It Was Contended In This Regard By The Learned Counsel That Knife Was Not Visible In The Hand Of The Accused Sheo Mohan And The Same Appears To Have Been Hidden By Him In His Wearing Clothes And Since This Fact Might Not Be In The Knowledge Of The Accused Shanker @ Sheo Shanker, Hence On This Ground, The Appellant Shanker Could Not Be Convicted For The Offence Punishable Under Section 302 With The Aid Of Section 34 I.P.C. This Contention Has Got No Substance.
26.For The Applicability Of Section 34 I.P.C., The Knowledge Of The Hidden Weapon To All The Accused Persons Is Not Essential And To Attract This Section It Is Only Required That A Criminal Act Is Done By Several Persons In Furtherance Of The Common Intention Of All. Section 34 I.P.C. Really Means That If Two Or More Persons Intentionally Do A Common Thing Jointly, It Is Just The Same As If Each Of Them Had Done It Individually. Where Some Persons Go With A Common Purpose To Execute A Common Object, Each And Every Person Becomes Responsible For The Act Of Each And Every Other In Execution And Furtherance Of Their Common Purpose; As The Purpose Is Common, So Must Be The Responsibility. All Are Guilty Of The Principal Offence, Not Of Abetment Only. Leading Feature Of This Section Is The Element Of Participation In Action. The Essence Of Liability Under This Section Is The Existence Of A Common Intention Animating The Offenders And The Participation In A Criminal Act In Furtherance Of The Common Intention. The Essence Is Simultaneous Consensus Of The Minds Of Persons Participating In The Criminal Action To Bring About A Particular Result.
27.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 Well Develop On The Spot As Between A Number Of Persons, With Reference To The Facts Of The Case And Circumstances Of The Situation. 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. (Russel On Crime 12th Edn. Vol. I, Pp. 487 And 488).
28. In Instant Case, It Has Come In The Testimony Of P.W. 1 Kamla Devi That When The Accused Bhagwan Das Exhorted The Accused Sheo Mohan To Eliminate Ishwardeen And On His Exhortation Just As The Accused Sheo Mohan Took Out The Knife And Ishwardeen Stood Up, Both His Hands Were Caught Immediately By The Accused Shanker And Unknown Person. Catching Hold Of The Hands Of Deceased By The Accused-appellant Shanker And Unknown Person On Taking Out Knife By The Accused Sheo Mohan Is Sufficient To Infer That The Common Intention To Commit The Murder Of Ishwardeen Was Developed At That Time And In Furtherance Of That Common Intention, Injuries Were Caused To Him By The Accused-appellant Sheo Mohan By Giving Him Successive Blows By Knife, Due To Which He Died In The Way, While He Was Being Carried To The Hospital After Lodging The F.I.R. Therefore, In Our Considered Opinion, The Conviction Of The Appellant Shanker For The Offence Punishable Under Section 302 With The Aid Of Section 34 I.P.C. Is Not Illegal, Because In Furtherance Of The Common Intention Of All The Accused Persons, Which Was Developed At The Spot, Murder Of The Deceased Was Committed.
29. It Was Also Submitted By The Learned Counsel For The Appellants That The Theory Of Catching Hold Of The Deceased At The Time Of Giving Knife Blows To Him Has Been Introduced Merely To Falsely Implicate The Appellant Shanker In This Case. The Contention Of The Learned Counsel Was That Knife Blows To The Deceased Could Be Given Without Catching Hold Of His Hands. We Find No Force In This Contention. The Post-mortem Report Ext. Ka-15 Shows That Most Of The Ante-mortem Incised Wounds Were On The Front Side Of The Body Of The Deceased. Even A Single Injury Was Not Found On Either Hand Of The Deceased. Absence Of Any Injury On The Hands Of The Deceased Shows That Both His Hands Were Caught At The Time Of Giving Knife Blows To Him And It Was For This Reason That No Injury On His Hand Was Caused. Had The Hands Of Deceased Were Not Caught, He Would Have Made Efforts To Resist The Blows With A View To Save Himself And In That Process Some Injuries Certainly Might Have Been Caused On His Hands Also, But As We Have Stated Above, Even A Single Injury Was Not Found Present On Either Hand Of The Deceased. On The Contrary, On The Basis Of The Cogent, Consistent And Reliable Evidence Of P.W. 1 And P.W. 2, It Is Fully Proved Beyond Reasonable Doubt That The Appellant Shanker And Unknown Person Had Caught Hold Of Both The Hands Of The Deceased And Then Successive Knife Blows Were Given To Him By The Accused Sheo Mohan. Had The Accused Shanker Not Participated In The Incident, He Would Not Have Been Falsely Implicated In This Heinous Crime, As Innocent Persons Are Not Normally Roped Falsely In The Crime Of This Nature By The Relatives Of The Deceased. Six Documents (paper No. 59-B To 64-B In Lower Court Record), Which Were Filed By The Accused Shanker At The Time Of His Examination Under Section 313 Cr.P.C. Are Not At All Material To Show That He Has Been Falsely Implicated In This Case. The Complicity Of The Appellant Shanker In The Incident Of Causing Injuries To The Deceased Ishwardeen Has Been Fully Proved Beyond Reasonable Doubt On The Basis Of The Cogent And Trustworthy Evidence Of The Witnesses Smt Kamla Devi And Subhash. Having Considered The Papers Filed By The Accused Persons And Properly Appreciating The Evidence On Record, The Learned Trial Court Has Drawn A Right Conclusion And No Illegality Has Been Committed In Convicting The Appellant Shanker Also For The Offence Punishable Under Section 302 Read With Section 34 I.P.C. Hence, There Is No Scope To Make Any Interference In The Conviction Of The Accused-appellants.
30. Regarding The Complicity Of The Accused Shanker In The Incident, It Was Further Contended By The Learned Counsel For The Appellants That There Was No Motive For The Accused Shanker To Commit The Murder Of The Deceased Ishwardeen And Hence, On This Ground Also His False Implication Cannot Be Ruled Out. It Is A Case Of Direct Evidence. On The Basis Of The Cogent And Trustworthy Evidence Of P.W. 1 And P.W. 2, Active Participation Of The Accused-appellant Shanker In The Incident Of Causing Injuries To The Deceased Has Been Fully Proved Beyond Reasonable Doubt. It Is Well Settled Principle Of Law That Where There Is Direct Reliable Evidence To Prove The Crime, The Matter Of Motive Looses Significance. In The Case Of Thaman Kumar Vs. State Of Union Territory Of Chandigarh, Reported In (2003) 6 SCC 380: (AIR 2003 Sc 3975), The Apex Court Has Observed As Under:-
"There Is No Such Principle Or Rule Of Law That Where The Prosecution Fails To Prove The Motive For Commission Of The Crime, It Must Necessary Result In Acquittal Of The Accused. Where The Ocular Evidence Is Found To Be Trustworthy And Reliable And Finds Corroboration From The Medical Evidence, A Finding Of Guilt Can Safely Be Recorded Even If The Motive For The Commission Of The Crime Has Not Been Proved."

31. In The Case Of State Of H.P. Vs. Jeet Singh Reported In (1999) 4 SCC 370 : (AIR 1999 SC 1293), The Apex Court Has Made The Following Observations:-
"No Doubt It Is A Sound Principle To Remember That Every Criminal Act Was Done With A Motive But Its Corollary Is Not That No Criminal Offence Would Have Been Committed If The Prosecution Has Failed To Prove The Precise Motive Of The Accused To Commit It. When The Prosecution Succeeded In Showing The Possibility Of Some Ire For The Accused Towards The Victim, The Inability To Further Put On Record The Manner In Which Such Ire Would Have Swelled Up In The Mind Of The Offender To Such A Degree As To Impel Him To Commit The Offence Cannot Be Construed As A Fatal Weakness Of The Prosecution. It Is Almost An Impossibility For The Prosecution To Unravel The Full Dimension Of The Mental Disposition Of An Offender Towards The Person Whom He Offended."

32. Drawing Our Attention Towards The Postmortem Report Ext. Ka-15, It Was Further Submitted By The Learned Counsel For The Appellants That Semi-digested Food About 4 Ozs. Was Found Present In The Stomach Of The Deceased At The Time Of Post-mortem Examination, Which Falsifies The Prosecution Case Of Committing Murder Of The Deceased Prior To His Taking Meal In The Night. It Was Submitted By The Learned Counsel In This Regard That Had The Murder Of The Deceased Been Committed Prior To His Taking Meal In The Night, Then His Stomach Might Have Been Found Empty, Whereas Semi-digested Food Was Found Present In His Stomach At The Time Of Post-mortem Examination, Which Shows That The Incident Had Occurred At Some Other Time And Due To Enmity, False Story Has Been Concocted By The Complainant. We Are Not At All Impressed With This Submission. This Aspect Has Been Dealt With By The Learned Trial Court Also In The Impugned Judgement And Cogent Reasons Have Been Given To Discard This Contention. The Possibility Of Eating Something In The Evening By The Deceased At His Betal Shop 3-4 Hours Prior To The Incident Cannot Be Ruled Out. Therefore, The Case Of The Prosecution Cannot Be Discarded Due To Presence Of Semi Digested Food In The Stomach Of The Deceased At The Time Of Post Mortem Examination.
33. No Other Point Worth Mentioning Was Urged Before Us By The Parties Counsel.
34. For The Reasons Which We Have Mentioned Herein-above, There Is No Scope To Make Any Interference In The Impugned Judgement, As The Learned Trial Court Properly Appreciating The Evidence On Record Has Rightly Convicted The Appellants-accused For Committing The Murder Of Deceased Ishwardeen.
35.Consequently, The Appeals Of The Appellants-accused Shanker @ Sheo Shanker And Sheo Mohan Are Dismissed. Their Conviction And Sentence As Awarded By The Trial Court Court Are Affirmed. They Shall Be Sent To Jail By The Trial Court To Serve Out The Sentence. The Appeal Of The Appellant-Bhagwan Das Stands Abated Due To His Death.
This Judgement Will Form Part Of The Record Of Criminal Appeal No. 2496 Of 1984 And A Copy Thereof Will Be Kept On The Record Of Criminal Appeal No. 2934 Of 1984.
The Office Is Directed To Return The Lower Court Record Along With A Copy Of This Judgement Expeditiously. Compliance Report Be Submitted By The Trial Court Concerned Within Two Months.

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