Case Note & Summary
The appeal arose from the judgment of the High Court of Madhya Pradesh at Gwalior Bench dated 25.06.2008 in Criminal Appeal No.275 of 1995, which affirmed the conviction of the appellants under Section 302 IPC read with Section 34 IPC and the sentence of life imprisonment. The incident occurred on 08.01.1984 at about 10:00 am when the deceased Ram Autar was taking meals. After meals, he went to the courtyard for water. Appellant No.1-Rameshwar, with whom the deceased had rivalry, came armed with a farsa (axe), and five other accused persons, including appellant No.2-Balaram, were standing at the door of a neighbour, Kedar Seth, armed with rifles and danda. Appellant No.1 exhorted others to kill the deceased and attacked him with farsa. The deceased ran out, but four persons caught hold of him. Appellant No.1 and accused Ram Bharosey joined them. Tejabai, mother of deceased, tried to save him but was injured. The prosecution alleged that appellant No.1 and Ram Bharosey caught hold of the deceased, and appellant No.2 fired a gun shot that hit the deceased's back, causing fatal injury. Appellant No.1 also fired a gun shot. The trial court convicted both appellants under Section 302 IPC read with Section 34 IPC, sentencing them to life imprisonment and fine. The High Court affirmed the conviction. During the appeal before the Supreme Court, appellant No.1 died, and the appeal against him abated. The Supreme Court considered the submissions of the appellant No.2's counsel that there was no clear evidence of prior concert or meeting of mind, and that the eye-witnesses' depositions were inconsistent and contradictory. The court held that the presence of appellant No.2 was established by consistent evidence of eye-witnesses, and he was armed with a rifle, thus sharing the common intention acting in concert with accused Rameshwar. The court found that the contradictions in evidence as to who fired the fatal shot did not affect the prosecution case because the common intention was established. The court affirmed the conviction of appellant No.2 under Section 302 IPC read with Section 34 IPC and dismissed the appeal qua him, directing him to surrender within six weeks to serve the remaining sentence.
Headnote
A) Criminal Law - Common Intention - Section 34 IPC - Conviction with aid of Section 34 IPC - The court held that to invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. Presence of appellant No.2 armed with rifle and acting in concert with co-accused established common intention, justifying conviction under Section 302 IPC read with Section 34 IPC despite contradictions as to who fired the fatal shot (Paras 12-13). B) Evidence Law - Contradictions in Witness Testimony - Reliability - The court held that contradictions in the evidence of eye-witnesses as to who fired the gun shot do not affect the prosecution case when the common intention is established. The statement of PW-1 in Dehati Nalishi was found reliable as it was corroborated by other witnesses (Paras 10-11).
Issue of Consideration
Whether the conviction of appellant No.2 under Section 302 IPC read with Section 34 IPC is sustainable when there are contradictions in the evidence of eye-witnesses as to who fired the fatal gun shot.
Final Decision
The Supreme Court dismissed the appeal qua appellant No.2-Balaram, affirming his conviction under Section 302 IPC read with Section 34 IPC and the sentence of life imprisonment. The appeal against appellant No.1-Rameshwar was dismissed as abated due to his death. Appellant No.2 was directed to surrender within six weeks to serve the remaining sentence.
Law Points
- Common intention under Section 34 IPC
- Conviction with aid of Section 34 IPC despite contradictions in evidence
- Applicability of Section 34 IPC when actual assailant is not identified
