Mantha alias Sadri Prasad v. State of M. P. — 1995 DIGILAW 315 (MP)

JUDGMENT D.M. Dharmadhikari, J. -- 1. The appellant accused has been convicted under section 302 read with section 34 of the Indian Penal Code and sentenced to life imprisonment. He was charged alongwith two other accused namely Munna alias Om Prakash and Madari for causing murder of Udairam and attempting to commit murder of Munshilal. The other two co-accused, mentioned above, escaped from custody while they were being taken to the Sessions Court for facing a trial. 2. The case of the prosecution is that deceased Udairam and injured witness Munshilal (P.W. 11) resided in the same house where a portion of it was being used for carrying on a grocery shop. It is alleged that in the midnight between 16th and 17th November, 1978, the deceased, after closing the shop, was sleeping in his house in a room in the lower storey. The present appellant and two escaped co-accused knocked the door of the house and asked Udairam to open the shop as they wanted to purchase sugar and tea. The further story is that on the shop being opened, two of the alleged miscreants entered the shop and they caught hold of Udairam and on hearing the cries raised by Udairam, Munshilal (P.W. 11), Mohanlal (P.W. 13), son of the deceased and Kasturi Bai (P.W. 14), wife of the deceased, who were sleeping in the upper storey of the house, came down-stairs. Munshilal (P.W. 11) then caught hold of one of the two miscreants who were inside the shop. The other miscreant who had entered the shop, ran away from the spot. After his running away, it is alleged that the third miscreant who was identified as Munna and who was standing outside the shop at the door, fired at Munshilal and Udairam who had caught hold of the third miscreant, identified as Madari. The shot by the pistol caused injury to deceased Udairam, who succumbed to it, and Munshilal (P.W. 11). After the fire, the miscreant Madari who was caught hold of also managed to escape and ran away. 3. After the incident, a report of the occurrence was lodged by Munshilal (P.W. 11) at Janakganj Police Station, Gwalior. The injured including Udairam was forwarded to the hospital for treatment, but he died in the way. The appellant was arrested on 25.12.1978. A jercy was recovered from him as also a untensil called 'Bela'. 3. After the incident, a report of the occurrence was lodged by Munshilal (P.W. 11) at Janakganj Police Station, Gwalior. The injured including Udairam was forwarded to the hospital for treatment, but he died in the way. The appellant was arrested on 25.12.1978. A jercy was recovered from him as also a untensil called 'Bela'. It has been alleged that the utensil had been stolen from the shop of the deceased. After the arrest of the appellant a test identification parade was held in which Munshilal (P.W. 1), Shankarlal (P.W. 15) and Mohanlal (P.W. 13) identified the appellant. Kasturi Bai (P.W. 14) failed to identify the appellant. Kasturi Bai, however, identified the appellant in the accused's dock in course of trial. The learned Judge of the trial Court did not find the appellant to be guilty of offence under section 307 read with section 34 IPC of alleged attempt to commit murder of Munshilal (P.W. 11). The trial Court placed no reliance on the recovery of jercy and the utensil called 'Bela' from the appellant accused. It was held that they were all concocted and do not connect the appellant with the crime. The learned Judge of the trial Court, however, held the appellant guilty of the offence of murder of Udairam and convicted him under section 302 read with section 34, IPC. 4. The learned counsel appearing for the appellant accused assails the conviction firstly on the ground that on the admitted prosecution story, the pistol having been fired by one of the co-accused at the time when the present appellant had already run away from the spot, no charge of murder with common intention attributed to the appellant can be levelled and he be held guilty for the offence. According to the learned counsel, the appellant having run away from the spot before the pistol was fired, shows that he could have no common intention with the co-accused who fired the pistol to commit murder of Udairam. 5. The second ground urged on behalf of the accused is that the incident took place in the midnight and the manner in which the incident took place, the witnesses had no occasion to see the present appellant. 5. The second ground urged on behalf of the accused is that the incident took place in the midnight and the manner in which the incident took place, the witnesses had no occasion to see the present appellant. It is argued that the identification parade was conducted after an unduly long period of time and the appellant being in custody for a number of days, there was a chance to the witnesses to see the accused before identifying him in the parade. In this respect, it is also submitted that dock identification in Court-room had no value to base conviction. Reliance is placed on Mohanlal v. State of Maharashtra ( AIR 1982 SC 839 ). 6. The first question that arises for consideration is whether the accused was duly identified as one of the participants in the alleged crime. The first eye-witness to the incident examined is Munshilal (P.W. 1). He, in the witness-box, however, states that in the identification parade, he had identified the accused, the proceedings of which are marked as Ex. P/14. Similarly, Mohanlal (P.W. 13) who was sleeping upstairs and had come down to see the incident and the accused running away, identified the accused vide identification memo (Ex. P/14). The third witness is Kasturi Bai (P.W. 14). She was, however, unable to identify the accused and accepts that their faces were covered with a Parchi and, therefore, she failed to identify the accused. It is sought to be proved that the identification was held long after the incident, but the prosecution has explained the delay by stating that the accused were arrested on 25.12.1978 and thereafter, the identification parade was held on 9.1.1979 of all the accused persons. There was, thus, no inordinate delay in holding the identification parade as sought to be urged by the learned counsel appearing for the accused. In the proceedings of identification (Exs. P/15 and P/19), no infirmity is found to dilute its evidentiary value. The two eye-witnesses, Munshilal (P. W. 11) and Mohanlal (P. W. 13) have duly identified the accused and it has been established beyond doubt that he was one of the participants in the commission of the crime. 7. In the proceedings of identification (Exs. P/15 and P/19), no infirmity is found to dilute its evidentiary value. The two eye-witnesses, Munshilal (P. W. 11) and Mohanlal (P. W. 13) have duly identified the accused and it has been established beyond doubt that he was one of the participants in the commission of the crime. 7. The second question that needs decision is whether the present appellant with the aid of section 34, IPC can be held guilty of the offence of murder committed by the bullet fired from the pistol of co-accused Munna. Whether the present appellant accused had a common intention to commit murder of deceased Udairam can be decided only on the basis of the evidence on record. Eye-witness Munshilal (P.W. 11), in para 2 of his statement, admits that when he had caught hold of the co-accused Madari, the present accused Mantha had already run away from the place of the offence. The second eye-witness Mohanlal (P. W. 13) also corroborates the above version and states that Munshilal (P.W. 11) had caught hold of accused Madari and the other co-accused Munna fired pistol which hit Udairam. The third witness Kasturi Bai (P.W. 14) also corroborates in material particulars the above version of incident given by the other two eye-witnesses. From the evidence on record, it is established that the three accused persons, in odd hours in the midnight, had knocked the door of the grocery shop of deceased Udairam. After the door was opened, co-accused Madari and the present appellant entered the shop, whereas the third accused, Munna, remained at the door with a pistol in his hand. When Munshilal (P. W. 11) caught hold of co-accused Madari, with a view to get him released, co-accused Munna, who was at the door, fired the pistol. The appellant who had entered the house, in the meantime, ran away. Accepting the version of the eye-witnesses that the present appellant had already run away from the place of the occurrence when co-accused Madari was caught hold of and the pistol was fired by the other-accused Munna, in our opinion, the present appellant can be attributed with the common intention of causing death or murder of Udairam who was an inmate of the house. The common intention, in the meaning of section 34, IPC, can be gathered from the circumstances brought on record by the prosecution, and from the conduct of the accused. This inference can be gathered by the manner in which the accused arrived on the scene and committed the crime. In the instant case, all the three had entered the shop with intention to commit robbery. One of them was armed with pistol. In the manner in which the entry was made, it has to be inferred that all the three had made preparation and one of them was armed and posted at the entry of the house with a view to use the said fire-arm if there arose an urgency or necessity in the course of committing the crime. The totality of the circumstances on record goes to show that the present appellant accused had the knowledge of the fire-arm having been carried by the co-accused posted at the door and would be deemed to have the common intention with others in committing the offence of murder. We are supported in our view by the decision of the Lahore High Court in Indar Singh v. Emperor (AIR 1933 Lahore 819). In that case, the culprits had sworn to commit robbery and in furtherance of that intention different acts were committed by different persons. While one of the accused had gone to fetch one of the inmates of the house for carrying out the common intention, another accused shot down the deceased who was the son of the complainant. In the aforesaid circumstances, it was held by the Lahore High Court that although the accused who had gone to fetch one of the inmates of the house was not actually present at the time of murder, still, as he was also one of the participators in the joint criminal action, in the course of which the murder was committed, he was also constructively guilty under section 302, IPC. The Lahore High Court placed reliance on a decision of the Privy Council in Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1). We also get some support from the decision of the Allahabad High Court in Kallu v. State (Allahabad Law Joumal-1959- Vol. LVII 694). The Lahore High Court placed reliance on a decision of the Privy Council in Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1). We also get some support from the decision of the Allahabad High Court in Kallu v. State (Allahabad Law Joumal-1959- Vol. LVII 694). In the case of Kallu, in the course of committing an offence of lurking house-trespass by night, one of the accused caused death and others grievous hurt to the inmates. In such a situation, every person is held jointly concerned in committing lurking house-trespass by night or house breaking by night and held guilty of the offence under section 460, IPC on the principle of constructive liability and irrespective of the fact as to who cause death or grievous hurt. In the instant case as well, the circumstances, the facts on record and the conduct of the three accused show that all had the common intention to commit robbery by night and if the occasion so arose, to cause grievous hurt or death of the person who creates obstruction in fulfilment of their plan. In our considered opinion, therefore, the learned Judge of the trial Court committed no error in convicting the present appellant for the offence of murder punishable under section 302, IPC with the aid of section 34, IPC. 8. Consequently, we dismiss this appeal. The appellant is on bail. His bail bonds are cancelled and he is directed to surrender before the Chief Judicial Magistrate, Gwalior on 20.3.1995 to suffer the remaining part of the sentence. He is in custody in connection with some other offence. He be produced before CJM on the above date.