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1995 Supreme(MP) 359
1995 JLJ 742
D.M. Dharmadhikari and Fakhruddin, JJ.
Mantha alias Sadri Prasad v. State of M.P.
Cr. Appeal No. 25 of 1980; against judgment passed by Shri R.P. Upadhyaya, Additional Sesisions Judge, Gwalior in Sessions Trial No. 22 of 1979; Decided on 14.3.1995.
Arun Pateriya for appellant; J.D. Suryavanshi, Govt. Advocate for State.
Headnote:(1) Evidence Act, 1872 -- S. 9 -- accused duly identified by two eye witnesses out of three persons -- delay in conducting identification parade duly explained -- identification established. AIR 1982 SC 839 distinguished. [Para 6
(2) Penal Code, 1860 -- S. 302/34 -- three robbers entering house of deceased -- one posted at door with pistol who fired at deceased -- all having common intention to commit murder if need arises.
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. AIR 1933 Lahore 819, AIR 1925 PC 1 and All.LJ 1959 Vol.LVII 694 relied on. [Para 7
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 9 && rhu O;fDr;ksa esa ls vfHk;qDr dh nks izR;{kn‘khZ lkf{k;ksa }kjk lE;d~ :i ls ‘kuk[r dh xbZ && ‘kuk[r ijsM ds lapkyu esa gqvk foyac lE;d~ :i ls Li"Vhd`r && ‘kuk[r LFkkfirA , vkb vkj 1982 ,l lh 839 izHksfnrA ¿ iSjk 6
¼2½ naM lafgrk] 1860 && /kkjk 302 lgifBr 34 && rhu yqVsjs e`rd ds ?kj esa ?kqls && ,d njokts ij jgk ftlus e`rd ij fiLrkSy pykbZ && lHkh dk lkekU; vk‘k; vko‘;drk iM+us ij gR;k djus dk FkkA
rhuksa us ywVus ds vk‘k; ls nqdku esa izos‘k fd;kA muesa ls ,d ds ikl fiLrkSy FkhA ftl <ax ls izos‘k fd;k x;k] ;g vuqfer djuk gksxk fd rhuksa us rS;kjh dh Fkh rFkk muesa ls ,d edku ds izos‘k&}kj ij dfFkr vk;q/k dks iz;ksx djus dh n`f"V ls rSukr Fkk ;fn vijk/k ds vuqØe esa ,slh vkR;f;drk ;k vko‘;drk iM+sA vfHkys[kxr dh ifjfLFkfr;ksa dh laiw.kZrk ls nf‘kZr gS fd vihykFkhZ vfHk;qDr dks njokts ij rSukr lg&vfHkqDr ds ikl fiLrkSy gksus dh tkudkjh Fkh rFkk ;g le>k tk,xk fd vU; ds lkFk gR;k dk vijk/k djus esa mldk lkekU; vk‘k; FkkA , vkb vkj 1933 ykgkSj 819] , vkb vkj 1925 ih lh 1 rFkk ,,y,y ,y ts 1959 [kaM 57] 694 voyafcrA ¿ iSjk 7
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'. 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
