High Court is, therefore, right in holding that there was a possibility that he
has been introduced by the prosecution to involve the other three persons
in this case.
With this, stage is now ripe for dealing
with each appeal.
CRIMINAL APPEAL NO. 1519 of 2013
13)As already noticed, main role in the killing of Ramesh Masta is
attributed to Rahul @ Shashi Partap, who had fired the gunshot resulting
into the head injuries, which became the cause of this death. He has
been convicted by the trial court and his conviction has been upheld by
the High Court as well. We find from the record that complainant – Pawan
Kumar Masta appeared as PW-1 and deposed as per the contents of the
FIR. He, thus, is an eye witness to the whole episode. He not only
identified Rahul @ Shashi Partap, but also identified Bharat as driver of
the motorcycle and
Satender as pillion rider. Another eye witness is Mr. Dinesh, who
appeared as PW-2 and corroborated the statement of PW-1 narrating the
incident in identical manner. Other main witnesses are those who were
involved in the investigation, including PW-13 Sub-Inspector Satyavir Singh, PW-18 Inspector Darshan Lal, PW-19 Inspector Ram Avtar, PW-8 Inspector Dharampal, PW-7 Mr. Rameshwar Dhariwal, Divisional
Engineer at Mobile Switching Centre, Panipat and Shri J.B. Gupta, Chief
Judicial Magistrate, who appeared as PW-11 and deposed to the effect
that Satender and Bharat were produced before him with their faces
covered in mufflers along with an application for holding a Test
Identification Parade, but the accused persons have declined to join the
same.
14)It is not necessary to describe in detail the deposition of the Police
officials named above, who had appeared as witnesses, inasmuch as,
learned counsel appearing for Rahul @ Shashi Partap, even for that
matter learned counsel appearing for Bharat, the other convict, did not
make any submissions pointing out any irregularities or infirmities in the
investigation carried out by these officers. The only argument of the
learned counsel appearing for Rahul @ Shashi Partap, was that he was
falsely implicated by the complainant and he was innocent. However, he
could not point out any defect in the findings of fact recorded by the two
courts below accepting testimonies of PW-1 and 2, the two eye witnesses,
as reliable, unimpeachable and trustworthy. After going through the record again, including their depositions, we are of the opinion that the two
courts below have rightly found the statements of the two eye witnesses
worthy of credence. Based thereupon, under no circumstances, Rahul @
Shashi Partap, who had fired the gunshot, which hit the head of the victim,
can escape his liability. Moreover, the evidence of the eye witnesses is
corroborated by the medical evidence available on the record. In addition,
there was also recovery of country made pistol of Rahul @ Shashi Partap
along with the motorcycle, which was used for the crime, vide Recovery
Memo Exhibit P-G, from Rahul @ Shashi Partap on the basis of the
disclosure statement made by him. Thus, the prosecution established,
beyond reasonable doubt, the involvement of Rahul @ Shashi Partap in
commission of the crime with cogent, relevant and direct evidence. It
would be worthwhile to note that in his statement recorded under Section
313 of the Code of Criminal Procedure, 1973, apart from stating that he is
innocent and it was a blind murder case, his only defence was that there
was a revenue litigation between his father Karambir and the deceased
Ramesh Masta and that Karambir and Ramesh Masta had contested
elections of Municipal Corporation, Bhiwani against each other and
because of these reasons, Ramesh Masta and his family members were
nursing grudge against Rahul @ Shashi Partap and his family members. Once the actus reus is established, motive has been provided by Rahul @ Shashi Partap himself in his statement under Section 313 of the Code of
Criminal Procedure, 1973. We, thus, are of the opinion that the trial court
rightly held Rahul @ Shashi Partap guilty of murder under Section 302
IPC as well as in possession of illegal arms thereby convicting him under
Section 25 of the Arms Act.
15)For the foregoing reasons, this appeal is liable to be dismissed and is,
accordingly, dismissed.
CRIMINAL APPEAL NO. 1528 OF 2013
16)Insofar as this appeal filed by Bharat is concerned, argument of
learned counsel appearing for him was that he has not played any active
role. The allegation against him was that he was riding the motorcycle.
However, this motorcycle did not belong to him and was not even
recovered from him. Learned counsel made a passionate plea to the
effect that the prosecution had failed to prove common intention and also
that Bharat even had any knowledge that Rahul @ Shashi Partap was
going to shoot Ramesh Masta. He also submitted that Bharat was not
even named in the FIR. He was not associated with Rahul @ Shashi
Partap and it was Rahul who had a grudge against the deceased. He further argued that in the Arrest Memo (Exhibit DZ), the date was changed
from 07.11.2004 to 09.11.2004, which throws doubt upon the involvement
of Bharat, who was unnecessarily roped in at a later stage. Pleading that
in such circumstances Bharat also should have been acquitted by the
Court, as was done in the case of Satender by the High Court, who was
also a pillion rider, he referred to the judgments of this Court in Abdul
Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 and Ram Nath
@ Mamaji @ Jiwanlal v. State of Madhya Pradesh, AIR 1953 SC 420.
17)In Abdul Sayeed (supra), this Court observed as under:
“49. Section 34 IPC carves out an exception from general
law that a person is responsible for his own act, as it
provides that a person can also be held vicariously
responsible for the act of others if he has the “common
intention” to commit the offence. The phrase “common
intention” implies a prearranged plan and acting in concert
pursuant to the plan. Thus, the common intention must be
there prior to the commission of the offence in point of time.
The common intention to bring about a particular result
may also well develop on the spot as between a number of
persons, with reference to the facts of the case and
circumstances existing thereto. The common intention
under Section 34 IPC is to be understood in a different
sense from the “same intention” or “similar intention” or
“common object”. The persons having similar intention
which is not the result of the prearranged plan cannot be
held guilty of the criminal act with the aid of Section 34 IPC.
(See Mohan Singh v. State of Punjab, AIR 1963 SC 174)”.
18)In Ram Nath @ JUDGMENTMamaji @ Jiwanlal (supra), the relevant discussion for our purposes, is as follows:
“18. The further contention of Dr. Tek Chand that the High
Court was in error in holding that the provisions of Section
34 were attracted to the facts of the case is also well
founded. There is no evidence whatsoever of any
premeditation or of a prearranged plan by the assailants of
murdering Sunder. The conclusions of the High Court in
para. 53 of its judgment seem to be based more on
conjectures than on admissible material. No act or conduct
on the part of the accused has been proved from which an
inference of a prearranged plan to murder Sunder could be
raised.
Even if it is held proved that all the appellants were
seen at that spot at the time of firing this fact by itself could
not be held enough to prove a common intention of the
appellants to murder Sunder. It can well be that these four
persons were standing together and one of them suddenly
seeing Sunder fired at him. This possibility has not been
eliminated by any evidence on the record. In such a
situation when it would not be known who fired the fatal
shot, none of such persons could be convicted of murder
under Section 302, I. P. C. It seems to us that in this case
the High Court failed to appreciate the true effect of the
decision of the Privy Council in--'Mahbub Shah v.
Emperor', AIR 1945 PC 118 (A), and its judgment in regard
to the applicability of Section 34, I. P. C. has to be
reversed.”
19)We are unable to chew any of the aforesaid submissions of the learend
counsel. Argument of the learned counsel that Bharat was not named in
the FIR would hardly be of any consequence. In the FIR, the complainant
categorically stated that three young aged boys came upon the
motorcycle of silver colour without number plate. Clear description of Rahul @ Shashi Partap with parentage and residential address is given.
It is further stated in the FIR that along with Rahul there was another boy
who was riding the motorcycle and had kept the motorcycle in start mode.
He was having normaly body and his age was about 22-24 years. Thus,
not only the complainant gave the physical description and age of Bharat,
he even identified him in the Court. More pertinently, when Bharat was
produced by the Police after his arrest before PW-11 Mr. J.B. Gupta, Chief
Judicial Magistrate, along with an application for holding Test Identification
Parade, Bharat refused to join the same. Further, his conduct of not only
riding the motorcycle, but stopping the same at the spot where the
deceased was standing and keeping the engine of the motorcycle running
clearly leads to the conclusion that he was well aware of the plans of
Rahul @ Shashi Partap and was a party in executing the same. The
purpose of keeping the motorcycle in a running condition was to escape
from the place as soon as Rahul @ Shashi Partap fires the shot. Rahul,
who had alighted from the motorcycle along with Satender, came back
and Bharat eloped with them while riding the motorcycle. It would also be
relevant to mention that the motorcycle was recovered from Rahul @
Shashi Partap on the disclosure statement made by Bharat. Merely because Bharat was not the owner of the motorcycle is neither here nor there as it is totally irrelevant. Fact is that he was riding the motorcycle
and had gone with Rahul @ Shashi Partap to commit the murder of
Ramesh. The conduct, behaviour and active role of Bharat, along with
Rahul, clearly depicts his knowledge as well as common intention of two
of them to commit the crime. On these facts, Bharat cannot take help of
the judgments cited by the learned counsel. Once common intention is
proved establishing the ingredients of Section 34 IPC, Bharat becomes
vicariously liable to the same magnitude as Rahul, who actually shot the
victim.
20)Insofar as change of date in the Arrest Memo is concerned, it is also
not of any avail to Bharat simply because of the reason that this Arrest
Memo was produced on record by Inspector Ram Avtar (PW-19) who had
arrested Bharat. However, no question about this date was put to him in
the cross-examination so as to give an opportunity to PW-19 to explain
the same.
21)Having regard to the aforesaid facts, the judgments relied upon by the
learned counsel appearing for Bharat have no application in the present case. Accordingly, JUDGMENTCriminal Appeal No. 1528 of 2013 filed by Bharat is dismissed.
CRIMINAL APPEAL NO. 1521 OF 2013 CRIMINAL APPEAL NOS. 1526-1527 OF 2013
22)This leaves us to the case of Satender, who has been acquitted by the
High Court and challenging his acquittal appeals are preferred by the
State as well as the complainant. He had also gone along with Rahul @
Shashi Partap and Bharat and was a pillion rider. However, the reason for
acquittal of Satender was that no overt act had been attributed to him by
any of the eye witnesses. It was only during investigation the prosecution
tried to portray that he had also fired a shot from his pistol, which he was
carrying, but it had missed the target. This act of attribution, namely, he
had fired the shot but it had missed, could not be proved by the
prosecution during trial. Even the eye witnesses did not depose that
Satender was armed with any weapon. From this the High Court drew the
inference that during investigation and with a view to strengthen its case
against Satender, the investigating agency had tried to build up the said
story. The High Court was of the view that since no overt act had been
attributed to Satender by the eye witnesses and there was no such allegation in the FIRJUDGMENTalso, the possibility that he had been falsely involved in this case cannot be ruled out. He was not even identified by the
complainant at the first instance. Nothing could be shown which could
prove that he also had common intention, along with the two convicts, to
kill the deceased or had knowledge about the designs of the other two
persons with whom he had allegedly gone on motorcycle. Therefore,
judgment in Ram Nath @ Mamaji @ Jiwanlal (supra) becomes
applicable in his case. Thus, prosecution case qua him has been found
doubtful for the aforesaid reasons.
23)We are of the view that sufficient reasons are given by the High Court
in order to come to a conclusion that case against Satender has not been
proved beyond reasonable doubt. Once such a benefit of doubt is given
after sifting and analysing the evidence and the findings are not perverse,
it would not be appropriate to reverse that finding in these proceedings
under Article 136 of the Constitution of India. The appeal of State as well
as the one filed by the complainant against the acquittal of Satender are,
accordingly, dismissed.
(A.K. SIKRI)