Allahabad High Court
Ram Surat And Others vs State on 13 July, 2026
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on :- 07.04.2026
Delivered on :- 13.07.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2124 of 1985
Ram Surat and others
..Appellant(s)
Versus
State
..Respondent(s)
Counsel for Appellant(s)
:
Ashok Kumar Dwivedi, Pt.mohan Chand, Rajesh Singh
Counsel for Respondent(s)
:
D.g.a.
In Chamber
HON'BLE SIDDHARTH, J.
HON’BLE DIVESH CHANDRA SAMANT, J.
(Delivered by Honble Divesh Chandra Samant, J.)
Introduction: The Genesis of the Appeal
1. The present Criminal Appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 14.08.1985, passed by learned IV Additional Sessions Judge, Etah, in Sessions Trial No. 527 of 1984 (State vs. Ram Surat and others), arising out of Case Crime No. 879 of 1984, under Sections 302/34 IPC, Police Station- Sahawar, District- Etah.
2. At the outset, it is pertinent to note that during the pendency of this appeal, appellant No.1-Ram Surat died. Consequent to his demise, and in absence of any application by legal heirs to continue the proceeding, the appeal qua appellant No.1 stands abated vide this Courts order dated 02.04.2026. Accordingly, this judgment shall solely adjudicate the merits of the appeal concerning accused/appellant No.2 and 3.
Prosecution Case: The Allegations
3. Facts in brief are that the informant Ramvir has lodged an FIR vide a written report Exh. Ka-2 dated 24.04.1984. In the said report, he alleged that while he was returning to his house on his thresher for taking his meal, and upon reaching near his residence, Ram Surat, Ram Naresh and Rakesh, residents of the same village, arrived there armed with country-made 12-bore pistols. The accused persons allegedly started abusing him and exhorted each other, saying that he had ruined them and should be killed. Upon hearing his cries for help, his mother, Triveni, along with Ram Sevak, son of Ram Bharose Lal, Shiv Prasad, son of Ganga Ram, and several other villagers, reached the spot at about 6:00 p.m. It is further alleged that the accused persons fired at the informant and thereafter fled from the place of occurrence. The written report also mentions that the informant and the accused persons were on inimical terms and that litigation between them was already pending.
Proceedings Before Trial
4. On the above Tehreer Exh. Ka-2, an FIR No. 69 was registered on 24.04.1984 at 11:00 PM at Police Station Sahavar, Sub-District-Kasganj, District-Etah (now district Kasganj) as Case Crime No. 87 of 1984 under Section 307 IPC against the accused No.1- Ram Surat S/o Rewari Lal, accused No.2- Ram Naresh S/o of Rewari Lal and accused No.3 Rakesh S/o Rameshwar Dayal,all resident of Village Amirsa, Police Station-Sahavar, District-Etah.
5. After registration of the FIR, the investigation was entrusted to Sub-Inspector Surjan Singh. As the informant, Ramvir, had sustained injuries in the incident, he was taken to Sahavar by his mother, Triveni Devi (PW-4), along with other villagers. Thereafter, the injured Ramvir was medically examined by Dr. S.S. Bhadauria (PW-1), who referred him to a higher medical centre at Agra for further treatment. During the course of his treatment at Agra, Ramvir succumbed to his injuries on 03.05.1984. Information regarding his death was conveyed to Police Station M.M. Gate, Agra by Babulal, a ward boy of S.N. Hospital, Agra, on 03.05.1984 at about 10:15 a.m. Upon receipt of the said information, Sub-Inspector Shiv Charan Singh of Police Station M.M. Gate, Agra, accompanied by Constable No. 503, Lal Singh, reached the mortuary of S.N. Hospital and commenced the inquest proceedings at 10:50 a.m. on the same day. The inquest was concluded at 12:30 p.m. Thereafter, the dead body of the deceased, Ramvir Singh, was sent for post-mortem examination through Constable No. 503, Lal Singh, along with the requisite papers, namely, the Inquest Report (Exh. Ka-3), Nakal Rapat/General Diary Entry (Exh. Ka-11), Police Form No. 13 (Challan Nash, Exh. Ka-4), Police Form No. 379 (Photo Nash, Exh. Ka-5), Police Form No. 33 addressed to the concerned Surgeon through the Reserve Inspector (Exh. Ka-7), and the letter addressed to the Chief Medical Officer (Exh. Ka-6), all prepared by Sub-Inspector Shiv Charan Singh, who conducted the inquest proceedings.
6. The post-mortem examination of the deceased, Ramvir, was conducted on 03.05.1984 by Dr. Sudhir Chandra (PW-8). As per the Post-Mortem Report (Exh. Ka-12), the cause of death was shock and haemorrhage resulting from firearm injuries. The report further records that one charra (pellet) was recovered from the peritoneal cavity of the deceased. Nakal Rapat No. 25 (G.D. Entry dated 19.05.1984) records that the post-mortem report, along with the relevant documents, namely the Inquest Report, Police Form No. 33, Police Form No. 13 and other connected papers, as well as a sealed envelope containing a pea-sized charra (pellet), was deposited at the police station. On the basis of the post-mortem report and the death of the injured, the case was converted from Section 307 IPC to Section 302 IPC. Thereafter, the relevant papers were handed over to the Investigating Officer, Station Officer Brijraj Singh. The General Diary Entry (Nakal Rapat, Exh. Ka-11) further records that, through a Chitthi Majroobi, the injured Ramvir had been sent to the Government Hospital, Sahavar, through Constable No. 818, Abhilakh, for medical examination and treatment. During the course of investigation, four empty 12-bore cartridges were recovered from the place of occurrence. The Recovery Memo (Exh. Ka-14) records that Sub-Inspector Shiv Charan Singh, along with the police party, recovered four red-coloured empty cartridges from a passage situated near the house of the injured Ramvir. Two of the cartridges bore the inscription K.F. Special Long Range and their hardboard portions were found torn, while the remaining two cartridges were also red in colour. The recovered cartridges were sealed in a cloth parcel in the presence of witnesses Ramesh and Rampal, residents of the village where the incident had occurred. The Recovery Memo (Exh. Ka-15) further records that Sub-Inspector Shiv Charan Singh collected blood-stained earth as well as plain earth from the place of occurrence. The samples were kept in separate containers and duly sealed. This recovery was also effected on 25.04.1984 in the presence of witnesses Ramesh and Rampal. During the investigation, the statements of various witnesses, including that of the injured informant (who subsequently died), were recorded by the Investigating Officer. The named accused persons were arrested and, upon completion of the investigation, Charge-Sheet No. 83 of 1984 in Case Crime No. 87 of 1984, Police Station Sahavar, District Etah, was submitted against the accused persons, namely Ram Surat, Ram Naresh and Rakesh, under Section 302 IPC. The learned Magistrate took cognizance of the offence and, finding the case exclusively triable by the Court of Session, committed the matter to the Court of Sessions.
7. On 30.10.1984, the case was registered as Sessions Trial No. 581 of 1984 (State Vs. Ram Surat) before the Court of Sessions on 09.11.1984. Since the accused were on bail, they were summoned by the Trial Court. The accused appeared and charges were framed on 13.05.1985 against all three accused, namely, Ram Surat, Ram Naresh and Rakesh which is reproduced hereunder:
“That on or about 24th day of April, 1984, at about 6.30 PM near a well very close to the house of deceased Ramvir son of Laxmi Narain resident of village Amirsa, police station Sahwar, district Etah, in furtherance of common intention of you all to commit murder of the said Ramvir you all did fire with your firearms at the said Ramvir and caused gunshot injuries to him. and the said Ramvir having died at S.N. Medical College on 3.5.1984 on account of the said injuries, you committed his murder, an offence punishable under Section 302 read with Section 34 of the Indian Penal Code; and within the cognizance of this Court;”
During trial, following witnesses have been produced before the Court and their statements have been recorded:-
Witness Type
Name/Designation
PW-No.
Doctor
Dr. S.S. Bhadauriya
PW-1
Formal witness
Satyendra Pal Singh
PW-2
Witness of fact
Ram Sevak
PW-3
Witness of fact
Triveni Devi
PW-4
Witness of fact
Shiv Prasad
PW-5
Witness of fact
S.I. Shiv Charan Singh
PW-6
Witness of fact
S.I. Dinesh Kumar Sisodiya.
PW-7
Doctor
Dr. Sudheer Chandra
PW-8
Investigating Officer
S.I. Surjan Singh
PW-9
The witnesses have proved the following documents (Documentary Exhibits):-
Witness
Document
PW-1 Dr. S.S. Bhadauriya
Injury Report (Ex. Ka 1)
PW-2 Satyendra Pal Singh (Scribe)
Written Report (Tehrir)(Ex. Ka 2)
PW-6 S.I. Shiv Charan Singh
Inquest report (Ex. Ka 3), Challan Nash (Ex. Ka 4), Photo Nash (Ex. Ka 5), Letter to C.M.O. (Ex. Ka 6), Letter to C.M.O. by R.I. (Ex. Ka 7)
PW-7 S.I. Dinesh Kumar Sisodiya.
Charge-sheet (Ex. Ka 8)
PW-8 Dr. Sudheer Chandra
Post Mortem Report (Ex. Ka 9)
PW-9 S.I. Surjan Singh
Chick FIR (Ex. Ka10), Entry GD -Rapat No. 45 dated 24.04.1984 (Ex. Ka11), GD Entry No. 25 (Ex. Ka12), 161 CrPC statement of complainant/deceased (Ex. Ka 13), recovery memo of empty cartridge (Ex. Ka 14), recovery memo of blood stained and plain earth (Ex. Ka15)
Material Exhibits
Material
Exhibit No.
12 Bore Cartridge
Ex. 1 to Ex. 4
Blood Stained Soil
Ex. 5
Plain Soil
Ex. 6
8. The statement of accused Ramnaresh, Rakesh and Ram Surat were recorded under Section 313 CrPC on 03.08.1985.
9. In defence evidence, the signatures of Ram Naresh and thumb impression of witness Ved Prakash upon the inquest report (Exh. Kha-1 and Exh. Kha-2) has been proved on cross-examination of PW-6 S.I. Shiv Charan Singh and a certified copy of charge-sheet No. 154 dated 13.12.1975 of Case Crime No. 309 under Section 436 IPC against the accused Mahesh S/o Ram Dhobi, Ram Surat S/o Rewari, Rameshwar S/o Chokhey Brahman and Rajvir S/o Banni Naai, the complainant-informant of this case was Ramvir S/o Laxmi Narayan who is also deceased-informant in the present case. This charge-sheet is marked as Exh. Kha-3.
10. After hearing the submissions advanced on behalf of the prosecution as well as the defence and upon appreciation of the evidence available on record, the learned trial court, vide judgment and order dated 14.08.1985, convicted all the three accused persons under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life. Aggrieved by the aforesaid judgment of conviction and order of sentence dated 14.08.1985, the present criminal appeal has been preferred by the appellants.
Contention of learned counsel for the appellants
11. Learned counsel for the appellants submitted that no specific role has been assigned to any of the accused persons either in the FIR lodged by the injured Ramvir (since deceased) or in his statement recorded under Section 161 CrPC (Exh. Ka-13). Learned counsel further submitted that the medical evidence shows that there was only one gunshot injury. Referring to the injury report and the testimony of PW-1, it was contended that all the injuries found on the body of the injured could have been caused by a single shot. Reliance was also placed upon the post-mortem report dated 03.05.1984 and the testimony of PW-8 Dr. Sudheer Chandra to submit that one pellet was recovered from the peritoneal cavity and the cause of death was firearm injury. It was further argued that the prosecution has failed to establish which of the accused had caused the fatal injury.
12. It was next submitted that the alleged motive was only against appellant No.1 Ram Surat, as is evident from the statement of the informant recorded under Section 161 CrPC (Exh. Ka-13). According to learned counsel, there is no evidence of any motive against appellant Nos. 2 and 3 and in view of the fact that there was only one gunshot injury and no specific role has been attributed to any of the accused, the conviction of appellant Nos. 2 and 3 can be sustained only with the aid of Section 34 IPC, however, there is no evidence on record to show any prior meeting of minds or common intention amongst the accused persons so as to attract Section 34 IPC.
13. It was also submitted that PW-3 Ram Sevak and PW-5 Shiv Prasad, who are witnesses of fact as well as witnesses of the inquest, merely stated during the inquest proceedings that the deceased had died due to a gunshot injury, but did not mention the names of the assailants.
14. Referring to the site plan (Exh. Ka-16), learned counsel submitted that it was prepared by the Investigating Officer on the pointing out of PW-3 Ram Sevak and PW-4 Triveni Devi and does not establish the participation of appellant Nos. 2 and 3 in the commission of the offence.
15. On the strength of the aforesaid submissions, learned counsel contended that the prosecution has failed to prove the guilt of appellant Nos. 2 and 3 beyond reasonable doubt and, therefore, they are entitled to the benefit of doubt.
Contention of the State
16. Per contra, learned AGA supported the judgment of conviction and submitted that the prosecution has proved its case beyond reasonable doubt. He contended that the FIR was lodged by the injured Ramvir himself, in which all the three accused persons were specifically named. The prosecution case is further supported by the testimony of the eye-witnesses, whose presence at the place of occurrence has been fully established.
17. Learned AGA submitted that the absence of a specific role is not fatal to the prosecution case, as the evidence on record shows that all the accused persons acted together. It was argued that common intention can be inferred from the facts and circumstances of the case and, therefore, the trial court has rightly convicted the appellants with the aid of Section 34 IPC.
18. He further submitted that the ocular evidence is fully supported by the medical evidence and that minor omissions or discrepancies, including those relating to the inquest proceedings, do not affect the prosecution case. It was, therefore, argued that the trial court has rightly appreciated the evidence on record and no interference is called for in the impugned judgment.
Testimonies
PW-1-Dr. S.S. Bhadauriya
19. PW-1 Dr. S.S. Bhadauriya gave his deposition before the trial court and was examined as PW- 1. In his testimony he deposed that he examined the deceased on 24.04.1984 at 11:45 PM and gave the description of the injuries found on the body of the Ramvir. He prepared and verified the injury report (Exh. Ka-1) which records following injuries:
1- Gunshot wound of entry 1cm x 1cm depth not probed in the interest of the Pt., on the Rt. Side of chest 4cm medial to the Rt. Nipple. Burning, Singeing, Blackening and Tattooing not present. One shot is palpable 6cm below the Rt. Nipple. Bleeding present. Adv. X-ray Chest
2- Gunshot wound of entry cm x cm x depth not probed in the interest of the Pt., on the Lt. Side of the front of neck 5cm above the medial end of Lt. Clavicle. Burning, Singeing, Blackening and Tattoing not present. No shot-palpable. Bleeding present. Adv. X-ray neck.
3- Gunshot wound of entry cm x cm x depth not probed in the interest of the Pt., on Rt. Side of face 3cm below the medial angle of Rt. eye. Burning, Singeing, Blackening and Tattoing not present. No shot palpable, Bleeding present. Adv. X-ray face
All the injuries kept under observation. Adv. X-ray chest, neck and face. All injuries caused by blast of fire arm. Duration fresh.
Pt. Kept under observation.
He deposed that the injuries could have been caused on 24.04.1984 at around 06:00 PM. Under cross-examination he deposed that the firing could have been done from a distance of about 9 feet or more and it is also possible that the all three injuries were caused by single shot. He also deposed that these injuries could have occurred on 24.04.1984 at 10-10:30 PM.
PW-2-Satyendra Pal Singh
20. Satyendra Pal Singh gave his deposition before the trial court and was examined as PW- 2. In his testimony he deposed that on receiving the information about the incident, he reached the house of the deceased, wrote a written report of the incident as narrated by Ramvir (deceased). He verified the written report (Exh. Ka 2) that this is the report which he wrote. He also deposed that deceased died due to the said injuries. Under his cross-examination he deposed that no one told him about the manner of the incident and only Ramvir told him.
PW-3-Ram Sevak
21. Ram Sevak gave his deposition before the trial court and was examined as PW-3. In his testimony he deposed that when he heard the sound of firing he came out of the house and saw that Ramvir had been shot at and was lying injured on the way near the well in front of Ramvir’s house. PW-3 also deposed that he saw the incident from a distance of 50-60 yards from the spot, the accused Ram Surat, Rakesh, Ram Naresh were running towards South direction. In his cross examination he deposed that he saw the accused firing on Ramvir. He deposed that he heard the sound of firing and came out after hearing and Triveni Devi (PW-4) was already there at the place of incident, Shiv Prasad arrived right in front of him, further said that Shiv Prasad (PW-5) was already there and Ramvir was lying. He deposed that it is wrong to say that he didnt saw the incident.
PW-4-Triveni Devi
22. Triveni Devi, who is the mother of deceased, gave her deposition before the trial court and was examined as PW-4. She deposed that after hearing abusive language she came out of the door and saw Ramnaresh, Ramsurat and Rakesh (accused persons) abusing her son Ramvir. All three were armed with country made pistols and fired at Ramvir (deceased). She also deposed that on hearing the abuses Ramsevak and other villages, who witnessed the incident, arrived at the scene. She also deposed that a year before the incident the accused persons had a marpeet with her son and they held a grudge against him which is the bone of contention of the incident. In cross-examination, she deposed that the accused persons had been stealing from her house since the past 2-3 years and they also used to harass her and her son. She also deposed that about one year prior to the incident the accused had assaulted her son and the said incident was reported to the police and the trial had commenced but the dispute was settled by way of compromise between them. She also deposed that she did not know whether two cases were filed or one. She, thereafter, deposed that when Ramvir was shot at, litigation of assault was pending between them. She deposed that rest of the witnesses had assembled at the place of incident before the firing.
PW- 5-Shiv Prasad
23. Shiv Prasad gave his deposition before the trial court and was examined as PW-5. He deposed before the court that he met Ramvir (deceased) in fields and at about 06:30 PM Ramvir went to his house for food and PW-5 also accompanied him. He also deposed that when they reached near the well in front of the house, the accused came there having country made pistol in their hands and had fired upon Ramvir. He further deposed that, on hearing the abuses, the mother of the deceased i.e. Triveni Devi (PW-4), Ram Sevak (PW-3), Mahesh and other villagers had arrived there and witnessed the incident. In his cross-examination, he deposed that he was about 25-30 steps away from Ramvir when he was shot at by the accused and fell down, thereafter the accused fled away in south direction. He further deposed during his cross-examination that before the incident of firing, Triveni (PW-4), Ram Sevak (PW-3) and Mahesh had reached the place of incident.
PW-6- S.I. Shiv Charan Singh
24. S.I. Shiv Charan Singh was examined before the trial court as PW-6. He has proved the inquest proceedings along with Inquest Report and related documents marked as Exh. Ka-3 to Exh. Ka-7. During his cross examination, he deposed that he asked the panch witnesses Ram Sevak and Shiv Prakash as to how the deceased died and they told that he died due to firing.
PW-7- S.I. Dinesh Kumar Sisodiya
25. S.I. Dinesh Kumar Sisodiya was examined before the trial court as PW- 7. He deposed that he examined the previous parts (Parcha) of case diary recorded by previous IO and consequent upon completion of investigation filed charge-sheet (Exh. Ka-8). He also deposed that he interrogated the accused persons before filing the charge-sheet.
PW-8- Dr. Sudhir Chandra
26. Dr. Sudhir Chandra, who was anesthetist and had conducted autopsy of the corpse of deceased Ramvir, was examined before the trial court as PW-8. He proved the post mortem report marked as Exh. Ka-9 and deposed that he found the following ante mortem injuries on the body of the deceased :-
1- Stitched wound with then stitches, paraumbilical side 4 long over left side abdomen.
2- Surgical wound 1 x 1/2 on left side abdomen 2.5 lateral and above the umbilicus. Drainage tube was lying in the wound.
3- Tracheostomy surgical wound was present, Tube was lying in portal vein.
4- Abrasion 0.5cm left side and 2 above the medial 1/3rd of the clavicle.
5- Abrasion 0.5 x 0.3 on right side 1 below the medial angle of right eye.
27. Dr. Sudhir Chandra (PW-8) testified that during the medical examination, he found a three-inch stitched wound on the stomach and multiple stitches on the omentum (the fatty tissue layer surrounding the stomach). A small, pea-sized pellet was discovered inside the upper body cavity. While the small intestine contained digested food, the large intestine held stool and gas, and the bladder was completely empty. The witness confirmed that the cause of death was due to the injuries and conditions previously mentioned. Following the examination, the pellet was sealed in a packet and handed over to the police officer who accompanied the body.
28. During cross-examination, PW-8 admitted that the pellet recovered from the body was not physically present when his statement was being recorded. The witness also explained that if a pellet lightly brushes or grazes the skin, it can cause a minor scrape or abrasion. They rejected the defense’s suggestion that a grazing pellet would always cause a deep, torn wound rather than a simple scrape.
PW-9- Investigating Officer SI Surjan Singh
29. Investigating Officer SI Surjan Singh (PW-9) testified that the case began as an attempted murder (Section 307 IPC) when the FIR was filed on April 24, 1984, but was upgraded to a murder case (Section 302 IPC) on May 19, 1984, after the victim, Ramvir, died. The PW-9 stated that he recorded the informant’s statement on the first day, and on the following day, he inspected the crime scene, created a site plan, noticed pellet marks on a wall, and recovered four empty cartridges, four pellets, and soil samples. He also recorded statements from several witnesses, including Triveni Devi, who said she ran outside after hearing gunfire, and Shiv Prasad, who explained that the shooting was driven by a long-standing, bitter legal feud between Ramvir and Ramsurat. However, during cross-examination, the PW-9 admitted that he did not actually collect or lab-test any soil samples, and he did not seize Ramvirs clothes because the victim needed to be rushed to the hospital and had no other clothes to wear.
30. PW-9, in his testimony, has proved Check FIR, it’s entry in GD Rapat No. 45, entry of submission of PMR etc. in police station Rapat No. 25, statement of Ramvir recorded under Section 161 CrPC, recovery memo of empty cartridges, blood stained and plain earth soil and site plan which are marked as Exh. Ka-10 to Exh. Ka-16 respectively. He has also proved recovered four empty cartridges, plain and blood stained soil as Material Exhibit 1 to 6.
Findings of trial court
31. The trial court conclusively established that Ramvir’s death on May 3, 1984, was the direct result of ante-mortem firearm injuries sustained during the assault on April 24, 1984. This finding was anchored in the initial injury report (Ex.ka.1) by Dr. S.S. Bhadoria (P.W.1), the post-mortem (Ex.ka.9) report, and the corroborative medical testimony of Dr. Sudhir Chandra (P.W.8). Crucially, the court admitted two separate statements made by Ramvirthe written report (Ex.ka.2) dictated to Satyendra Singh immediately after the incident and his subsequent statement to the Investigating Officeras admissible dying declarations under Section 32 of the Indian Evidence Act. Because these statements consistently, clearly, and promptly named the accused, the court deemed them entirely truthful and reliable. Furthermore, the court found no conflict between the medical findings and the eyewitness accounts, noting that minor bodily abrasions were completely consistent with the victim falling or being grazed by pellets, and that not every shot fired had to strike the target to validate the prosecution’s version.
32. In evaluating the ocular evidence, the court accepted the testimonies of Shiv Prasad (P.W. 5) and Smt. Triveni Devi (P.W. 4) as highly credible and natural. It rejected the defense’s attempt to label Shiv Prasad a chance witness, finding his presence at the scene well-explained and his observation unaffected by viewing the fleeing accused from a short distance. The trial court convicted the accused by finding a seamless alignment between medical, ocular, and documentary evidence.
Analysis and findings
33. Having heard the arguments presented by the learned counsel for the appellants and the Additional Government Advocate and upon a meticulous review and evaluation of evidence, this Court now proceeds to decide this appeal.
34. As an appellate court we are duty bound to independently re-examine the facts and evidences that form the basis of the trial courts conviction of the appellants under Section 302/34 IPC. In this appeal, it must be determined whether the prosecution has met its legal burden of proving the guilt of the accused beyond a reasonable doubt. For a comprehensive determination of this case on merits, the prosecutions narrative against the following fundamental pillars shall be tested:-
Timing and process of FIR was the first information report filed quickly enough to guarantee it was genuine and free from fabrication or afterthought?
Crime scene and timeline has the prosecution proven exactly when and where the incident took place?
Method and manner of incident it is the evidence regarding how the crime was committed matches the eye witness accounts and medical reports.
Identity and Guilt: Whether the involvement of each accused person has been clearly established through reliable identification evidence and consistent witness testimony?
Individual or joint responsibility what specific action did each accused commit and do these actions establish shared criminal intent ?
Final conviction assessment do the proven facts met all legal requirements necessary to upheld the trial court guilty verdict and sentence ?
Timing and process of FIR
35. Insofar as the promptness and genuineness of the First Information Report are concerned, the Tehrir (Exh. Ka-2) shows that the incident took place at about 6:30 p.m. on 24.04.1984. The evidence on record further establishes that the Tehrir was scribed by Satendra Pal Singh (PW-2) on the dictation of the injured informant, Ramvir, who later succumbed to the injuries sustained in the occurrence. The Check FIR (Exh. Ka-10) discloses that the case was registered on the same day at 11:00 p.m.
36. PW-2 has deposed that upon receiving information regarding the incident, he reached the place of occurrence at about 6:45 p.m. and wrote the report as narrated by the injured Ramvir. His testimony finds corroboration from PW-4 Triveni Devi, the mother of the deceased, who stated that the Tehrir was got scribed by Ramvir through PW-2 and that thereafter she, along with other villagers, took the injured to the police station where the report was submitted. According to her, the injured was thereafter taken to Sahawar and, considering his serious condition, was referred to a higher medical centre at Agra.
37. The prosecution version regarding the prompt lodging of the FIR is further supported by the fact that the informant had sustained serious firearm injuries, as is evident from the injury report, the inquest report (Exh. Ka-3) and the post-mortem report. Significantly, no challenge was made by the defence during the cross-examination of PW-2 or PW-4 with regard to the timing of the lodging of the FIR or its registration.
38. In view of the aforesaid evidence, and having regard to the serious condition of the injured immediately after the occurrence, the interval between the incident at about 6:30 p.m. and the registration of the FIR at 11:00 p.m. stands satisfactorily explained. This Court, therefore, finds that the FIR was lodged promptly and without undue delay, leaving no room for deliberation, fabrication or false implication.
Crime scene and timeline
39. Now question arises whether the prosecution has established a consistent and verifiable account that aligns perfectly with the initial version set out in the first information report regarding locus in quo (place of occurrence). As per the FIR, the incident took place near the house of the informant. The Investigating Officer prepared a site plan of the place of occurrence depicting therein the various facts which are as under:-
“A. वादी का घटना के समय अपने थ्रेशर से मकान की ओर आने का संकेत है।
B. कुआँ के पास रास्ते का स्थान है जहाँ मकान के पास अभियुक्तों द्वारा वादी के ऊपर फायर करके चोट पहुंचाना कहा जाता है, इसी स्थान से खून आलूद व सादी मिटटी लिया गया है ।
C. वादी के मकान के दरवाजा के पास 3 कदम चौड़ा रास्ते का स्थान है, जहाँ से अभियुक्तों का फायर करना कहा जाता है। वह इस स्थान का अभियुक्तों द्वारा चलाए गए 4 अदद खोका कारतूस 12 बोर प्राप्त हुए है, C से “B की दूरी करीब पच्चीस कदम के लगभग है।
D. गवाह राम सेवक के चबूतरे का स्थान है, जहाँ शोर पर मकान से निकल कर चबूतरा के पास देखना कहा जाता है। D से C की दूरी 15 कदम है, और B की दूरी करीब 40 कदम के लगभग है।
E. वादी के मकान के उत्तर की और रास्ता का स्थान जहाँ से होकर घटना के बाद अभियुक्तों का भागा जाना कहा जाता है।
➜ वादी और गवाह शिव प्रसाद का थ्रेसर की ओर से वादी के मकान की ओर आने के मार्ग का संकेत है।
➔➔ घटना के बाद अभियुक्तों का दक्षिण की ओर जाने के मार्ग का संकेत है।
नीम के पेड़ का संकेत है।
≤ किवाड़द्वार दरवाजे का संकेत है।
O बिना खंभे का छोटा सा कुआँ है।”
40. The Investigating Officer-PW-9 S.I. Surjan Singh has stated in his statement that he had inspected the place of incident on the pointing out of Smt. Triveni Devi (PW-4) and Ram Sewak (PW-3). PW-9 has proved that the site plan was prepared in his handwriting and identified his signature over there which was marked as Exh. Ka-16.
41. It has been contended by the learned counsel for the appellant that the Investigating Officer has not mentioned the place where Shiv Prasad (PW-5) was standing and has seen when the Ramvir sustained bullet injury. It is further contended that the Investigating Officer has also not mentioned the place from where the PW-4 has seen the incident. Learned counsel for the appellants further submits that the spot memo i.e. Site Plan has been prepared by the Investigating Officer himself without ascertaining the fact of incident and falsely implicated the appellants. The appellants were not present there but to set out the complicity of the appellants, the prosecution has developed the story which corrodes the entire prosecution case.
42. To prove the place of occurrence as has been stated in the first information report and as mentioned the Site Plan Exh. Ka-16, the prosecution has adduced the witnesses before the trial court. The Scribe of the Tehreer (written report Exh. Ka-2) PW-2 Satendra Pal Singh did not say anything about the place of occurrence. Here, it is noteworthy that the informant who was injured in the incident has died during treatment. The statement of the informant was recorded by the I.O./PW-9 S.I. Surjan Singh who has stated in his testimony that after the registration of first information report, he took the statement of informant and recorded in the Case Diary, a copy thereof has been furnished by the PW-9 duly proved by him which has been marked as Exh. Ka-13.
43. A perusal of the Exh. Ka-13 shows that the informant has reiterated the place of occurrence to be near his house. The IO has recovered four empty cartridges of 12 bore from the passage adjacent to the house of the injured. A memo thereof was prepared by PW-9 and proved as Exh. Ka-14. PW-9 has stated in his testimony that he reached at the place of occurrence on 25.04.1984 and recorded the statement of PW-4 and PW-3 and recovered four empty cartridges of 12 bore from the place of occurrence.
44. PW-3 in his testimony has stated that when he reached the house of Ramvir, he saw Ramvir has sustained firearm injuries and lying in front of his house near a passage adjacent to a well. This witness has been cross-examined by ADGC wherein he has stated that when he came out from his house he saw Ramsurat, Ram Naresh and Rakesh came from a passage situated in front of his house holding country made pistols in their hands and were firing on Ramvir near his well.
45. PW-4 Triveni Devi who is also eye account to the incident, has affirmed the incident to have been occurred in front of her house. She was cross-examined at length wherein she has stated that her house is two or three houses away from the houses of the accused. A passage from her house goes towards north and thereafter it turns towards west where the house of the accused are situated. Nothing could have been found in the statement of PW-4 which can create doubt about the place of incident.
46. PW-5 Shiv Prasad who claims that he was accompanying the informant deceased Ramvir at the time of incident and affirmed the place of occurrence to be the same as has been mentioned in the Tehreer (Exh. Ka-2) and the site plan (Exh. Ka-16). This witness was also cross-examined at length in which he has affirmed the site plan by stating that the way through which they were coming is a passage which goes from east to west and they came by entering from north-east passage. He further stated that the passage from east to west ultimately goes towards the east out of the village. Nothing appeared in the statement which can create any doubt upon the alleged place of occurrence
47. Since the informant later died, the statement he gave to the police (under Section 161 CrPC) now counts as a dying declaration (under Section 32(1) of the Indian Evidence Act). Therefore, because this statement can be used as evidence, the prosecution has successfully proved exactly where the crime happened: near the informant’s house, around the well located there.
Method and manner of incident
48. Now the question arises as to where the alleged incident happened and the manner in which the incident is said to have been happened.
49. The defence argued that the prosecution failed to prove how the deceased informant actually received the gunshot wounds. They claimed that the accused individuals were falsely blamed and that the prosecution completely failed to prove the charges against them.
50. The learned AGA argued against the defence, stating that before the victim died from his injuries, he gave a statement to the police investigator that now counts as a valid dying declaration in court. In that statement, the victim explained that he was driving his thresher machine toward his home when Ramsurat, Ramnaresh, and Rakesh approached him with 12-bore country made pistols, insulted him, and shouted that they should kill him for ruining them. When the victim yelled for help, his mother, a man named Ramsevak, and other villagers rushed to the scene. The victim specifically stated that at around 6:30 p.m., all the accused shot at him with the intent to kill him, hitting informant Ramvir (deceased) with three bullet injuries before running away toward the south.
51. To prove how the crime happened, the prosecution produced three eye witnesses (PW-3, PW-4 and PW-5) and the medical and other evidences such as injury report, post mortem report, inquest report etc.. The witnesses PW-1 and PW-8 have proved the injury report Exh. Ka-1 and post mortem report Exh. Ka-9, whereas, PW-6 has proved inquest report Exh. Ka-3.
52. As per Tehrir Exh. Ka-2 the accused persons opened fire on the victim, Ramvir, while he was driving his thresher machine home, causing three gunshot wounds. The injury report and post mortem report also record three gun shot wounds on the body of the informant deceased as have been mentioned here-in-above, which is also corroborated by the inquest report Exh. Ka-3 drawn.
53. PW-1 Dr. S.S. Bhadauria testified that the lack of burn marks, singeing or tattooing on the wounds suggests the shots were fired from a distance of nine feet or more, possibly from a single fire. The autopsy doctor confirmed that a pea-sized pellet was recovered from the victim’s abdominal cavity, concluding that the cause of death was shock from firearm injuries. Because the defence did not challenge this medical conclusion, the prosecution successfully proved that Ramvir died from the gunshot wounds.
54. Now, question arises that in what manner the fire arm injuries have been caused. In this regard, the testimony of PW-3, PW-4 and PW- 5 are to be discussed and evaluated.
55. PW-4 Triveni Devi who is mother of the informant deceased Ramvir, has stated in her testimony that on hearing abusive language she came out of the door and saw Ramnaresh, Ramsurat and Rakesh (accused persons) abusing her son Ramvir. All three were armed with pistols and opened fire at Ramvir (deceased). On hearing abuses Ramsevak and other villagers, who witnessed the incident, arrived at the scene. She also deposed that a year before the incident the accused persons had a marpeet with her son and they held a grudge against him. In cross-examination, she deposed that the accused persons had been stealing from her house since the past 2-3 years and they also used to harass her and her son. She also deposed that about one year prior to the incident the accused had assaulted her son and the said incident was reported to the police and the trial had commenced but the dispute was settled by way of compromised between them.
56. PW-4 also deposed that she did not know whether two cases were filed or one. When Ramvir was shot at, litigation of assault was pending between them. She further stated that the other witnesses had arrived at the place of incident before the firing. Since the condition of her son Ramvir was serious he was referred to a superior hospital at Agra where after eight nights the informant-injured Ramvir died. PW-4 has specifically stated that when she heard abuses at her house door, she came out and saw that the accused persons were abusing her son and they had opened fire by country made pistols at her son.
57. This statement of PW-4 is supported by the Tehrir Exh. Ka-2 which was prepared by PW-2 on the dictation of informant deceased. It is noteworthy that the Tehrir has been proved by PW-2 and PW-4 also stated in her testimony that the written report (Tehrir) was got prepared by PW-2 Satendra Singh on the dictation of informant deceased Ramvir. Since Ramvir subsequently died due to fire arm injuries sustained by him, the content of Tehrir attains the status of dying declaration under Section 32(1) of the Indian Evidence Act.
58. It is also noteworthy that after the registration of FIR Investigating Officer PW-9 has recorded the statement of informant under Section 161 CrPC and a copy thereof has been proved by him as Exh. Ka-13. Since the informant died due to injuries sustained by him in the alleged incident, his statement recorded under Section 161 CrPC also attains the status of dying declaration under Section 32(1) of the Indian Evidence Act.
59. The conversion of a statement recorded by a police officer under Section 161 of the Code of Criminal Procedure, 1973 (CrPC) into a substantive piece of evidence as a Dying Declaration upon the subsequent death of the declarant is a well-settled principle of Indian criminal jurisprudence.
60. While Section 162(1) CrPC places a strict statutory bar on using statements made to the police during an investigation for any purpose other than contradicting a witness, Section 162(2) CrPC explicitly provides an exception. It carves out that nothing in Section 162 shall affect the provisions of Section 32(1) of the Indian Evidence Act, 1872. Therefore, if an injured person gives a statement to an Investigating Officer under Section 161 CrPC and subsequently succumbs to those injuries, that statement undergoes a legal transmutation and becomes admissible as a dying declaration.
61. In the case of Gulab Singh v. State of U.P. reported in 2004 Cri LJ 946, the Allahabad High Court held that a dying declaration recorded by a Police Officer is admissible and can be relied upon if it is consistent, voluntary, and truthful, even if recorded as an FIR or under Section 161 of CrPC The Court found the victim’s statement to the Investigating Officer reliable as a dying declaration, supported by the evidence like eyewitness testimony and the Post-Mortem examination report.
62. In Sri Bhagwan v. State of Uttar Pradesh (2013) 12 SCC 137 the Hon’ble Supreme Court observed that where an injured person is in a critical state and the offense is initially registered under Section 326 or 307 IPC, the Investigating Officer might not initially contemplate recording a formal dying declaration. However, given the exceptional circumstances stipulated under Section 162(2) CrPC, if the victim subsequently passes away, the Section 161 statement can be validly relied upon as a dying declaration to sustain a conviction under Section 302 IPC.
63. In Pradeep Bisoi v. State of Odisha (2019) 11 SCC 500 the Hon’ble Apex Court reinforced that if the person making the statement survives, it can only be used for corroboration or contradiction under Section 157/145 of the Evidence Act. However, if they die, the very same statement transforms into a substantive piece of evidence under Section 32(1).
64. In a recent landmark ruling of Neeraj Kumar @ Neeraj Yadav v. State of U.P. AIR 2026 SC 41, the Hon’ble Supreme Court unequivocally held that a statement recorded under Section 161 CrPC cannot be discarded as a dying declaration merely because death was not imminent at the time of its recording or because a substantial period elapsed between the statement and the eventual demise. The Court emphasized that Section 32(1) of the Evidence Act contains no limitation regarding time or the expectation of death; the solitary controlling test is whether the statement relates directly to the cause of death or the transaction leading to it.
65. From the above it is clear that a statement recorded under Section 161 of CrPC can be treated as a dying declaration once the maker dies, provided it relates to the cause or circumstances of his death. Thus, the Tehrir (written repoer) Exh. Ka-2 and statement of Ramvir (deceased) recorded under Section 161 CrPC Exh. Ka-13 are admissible under Section 32(1) of the Indian Evidence Act.
66. In the statement under Section 161 CrPC Exh. Ka-13, the informant deceased Ramvir has reiterated the facts as has been mentioned in the Tehrir Exh. Ka-2 which affirms the manner of incident as has been alleged in the FIR and as has been stated by the PW-4 Triveni Devi who is claiming herself to be eye account to the incident. Therefore, the statement of informant-deceased Ramvir Exh. Ka-13 is trustworthy.
67. Learned counsel for the appellant has drawn the attention of the court to the contradictions in the Statement of PW-4 wherein she has stated in her cross-examination that she reached to her son prior to the abuse. It is contended that PW-4 is not reliable and it is also not proved how the identity of the accused was ascertained because the incident took place in the evening when it was already dark.
68. The crime happened on April 24 at 6:30 PM. Since this was during the summer, it would not have been dark yet. PW-4 firmly maintained that she has not given the statement to the IO that she came out after hearing country made pistol firing at her son Ramvir and reiterated that she was at the scene before the shooting started and saw the attackers she reached at the spot before the firing took place. She further deposed that she has not stated to the IO that she came out after firing and then Shiv Prasad, Mahesh Dhobi and Ramsewak arrived at the scene. Additionally she has stated that after the accused persons fled away, the other people from the village and nearby houses arrived at the spot. She again stated that after receiving fire arm injuries her son fell down at about 5 paces from the well. Accused persons were standing at the west of the door of her house at about 3 to 4 paces. Her first room is situated at a distance of about 1 pace from the well. The hutment of Mahesh is situated at about 10 to 15 paces from the spot. She had pointed out the place where she was standing where her son received fire arm injuries and the Investigating Officer has drawn up a map. She also stated that some Pillets hit her wall. In the way she has narrated the incident in her statement as well as in her cross-examination, are in consonance with the first information report and the statement of informant (Exh. Ka-13) recorded under Section 161 CrPC Very minor contradictions are there which are worth ignoring as there is consistent flow of the version regarding the incident which indicates that PW-4 has seen the incident and her testimony is worth to rely upon.
69. Another witness PW-3 Ramsewak has been adduced by the prosecution claiming him to be eye account to the incident. In his statement PW-3 deposed that when he reached nearby the house of Ramvir, he saw Ramvir lying in front of his house nearby a well in an injured condition after sustaining fire arm injuries. He has seen the place of incident from about 50-60 yards and he had also seen from his house when the accused were running away. In his statement-in-chief, PW-3 did not support the prosecution story to the extent of being eye account and with the permission of the court, the witness PW-3 was cross-examined by the prosecution, wherein, he has affirmed that he has stated before IO that he saw from a Chabutra of his house that from a passage in front of his house the accused Ramsurat, Ram Naresh and Rakesh were opening fire at Ramvir with country made pistols holding in their hands. He has also accepted that he has stated to the IO that he has seen the accused persons were firing at Ramvir and specifically stated that the statement given before the Court that when he has seen the accused persons were running away towards the south is a wrong statement. He has wrongly made the said statement because it escaped his memory. He has further stated that he has seen all three accused, present in the court, firing at Ramvir from country made pistols holding in their hands and claimed that this statement is true.
70. PW-3 has also stated that after sustaining the fire arm injuries Ramvir fell down and at the time of firing, Triveni Devi PW-4 (mother of Ramvir) and Shiv Prasad also came to the spot who had seen the incident.
71. Thus, PW-3 has supported the story as well as the statement given by PW-4. This witness was cross-examined by the defence wherein he has stated that during the firing he was present at a Chabutra situated outside of his house. He was inside the house prior to the firing but after hearing the sound of firing he came out. He heard sound of 3 or 4 firing from inside his house. Before coming out of his house, Triveni Devi had already reached the spot and Shiv Prasad also reached the spot in his presence. This witness has also stated that Shiv Prasad came to the spot when he was present there. There is minor contradiction regarding presence of Shiv Prasad but overall inference comes from the cross-examination that this witness has reaffirmed the statement-in-chief and prosecution story and his statement is in harmony with PW-4, FIR and the statement of informant deceased Exh. Ka-13. Though this witness has stated in his examination in chief that when he reached the incident, the injured was lying near the well, but in the cross examination of prosecution as well as the defence, he has stated about the incident which appears trust worthy, therefore, in view of this Court this witness is also a reliable witness who was an eye account to the incident.
72. Now the oral testimony of other witness PW-5 is also important to be discussed and evaluated who was accompanying the informant deceased Ramvir at the time of the incident. This witness has stated in his examination in chief that about 6.30 PM Ramvir went to his house for taking meal and he was also with him. When they reached nearby the well situated in front of the house of Ramvir, the accused persons Ram Surat, Rakesh and Ram Naresh who were present in the court were holding country made pistols in their hands. The accused person told Ramvir साले तुमने हमें बर्बाद किया है जान से मर देंगे and then all three accused persons had open fired on Ramvir and he fell down sustaining the injuries. After hearing the sound of abuses the mother of Ramvir, Triveni Devi and Mahesh and other villagers also came to the spot and seen the incident. The accused persons were running away towards south. The prosecution has claimed this witness to be independent witness. The witness has been cross examined by the defence at the length wherein he has stated that when Ramvir came to take meal, he was also coming behind him at about 15-20 paces distance. He has stated that the passage from which they were coming was running towards east to west which goes out of the village. They came to that passage from the north-east side. When the court has asked, he told that he came from outside of the village which affirms the statement of PW-4. He further stated that he does not have any relation with Ramvir, he was only his friend because he was engaging Ramvir to get his field ploughed by tractor of Ramvir and also for threshing her agricultural produce. No material contradiction is found in the statement of PW-5. It has been contended that the PW-5 is interested witness because he is in friendship with Ramvir which has been specifically explained by PW-5 that their relationship were founded on the use of tractor and thresher which was very usual in those times for any agriculturist to get field ploughed and get agricultural produced threshed by using a thresher. In view of this Court, this witness is also trustworthy and reliable.
73. From the above discussion, this Court finds that the prosecution has established the manner of the incident as has been alleged in the FIR and the witnesses PW-3, PW-4 and PW-5 are the eye witnesses to the incident who have proved those facts. Their statements are in consonance with each other, no material contradiction are found in the statements of these witnesses. All three witnesses are reliable and accordingly it is found established that all three accused persons have opened fire at Ramvir when he reached near the well situated in front of his house and the incident has been seen by the above witnesses.
Identity and Guilt
74. Now, next point comes for adjudication is that whether the involvement of each accused persons has been clearly established through reliable identification, evidence and consistent witnesses testimony.
75. It has been contended that the appellants have been falsely implicated due to enmity the prosecution failed in proving any motive to commit the offence.
76. To buttress his submissions, learned counsel for the appellant relied upon Khema @ Khem Chandra (supra), wherein the Honble Supreme Court held that though minor inconsistencies in a witnesss testimony cannot be a ground to reject the evidence, material improvements require the Court to examine such evidence with greater caution. It was further held that previous enmity is a double-edged sword, as it may provide a motive for the offence but also creates the possibility of false implication, as observed in Ramashish Rai v. Jagdish Singh. Relevant paragraph in the case of Khema @ Khem Chandra (supra) is reproduced hereunder:
“We are conscious that on the ground of minor inconsistencies, the evidence of Inder (PW-2) cannot be brushed aside. However, it is to be noted that there are material improvements in his evidence. His evidence therefore is required to be scrutinized with greater caution and circumspection. It is further to be noted that even according to the prosecution, there is previous enmity between the accused and the deceased. As held by this Court in Ramashish Rai Vs. Jagdish Singh reported in (2005) 10 SCC 498, previous enmity is a double-edged sword. On one hand, it provides motive to the crime and on the other, there is a possibility of false implication.”
77. In another case law Shivaji Genu Mohite v. State of Maharashtra, (1973) 3 SCC 219, the Hon’ble Supreme Court has held as under :
“12. As stated earlier, the fact that the prosecution in a given case has been able to discover a sufficient motive or not cannot weigh against the testimony of an eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of an eyewitness is rendered untrustworthy.”
78. From the earlier made discussions, the manner and execution of the incident is found well proved. It is also found proved that all the three eye-witnesses i.e. PW-3, PW-4 and PW-5 have identified all three accused persons. It has been contended on behalf of the appellants that the accused persons have falsely been implicated due to enmity between the family of the deceased and the accused persons. In this regard PW-4 has deposed that about one year before the incident, the accused persons have beaten his son Ramvir in front of her for which a report was lodged with the police and a case was going on at the time of incident. She has also stated that about 7-8 years prior to the incident, her house was set on fire for which a report was lodged by his son against the accused Ramsurat and Rameshwar father of accused Rakesh. She does not know whether Ramvir was witness in that case or not. In the Tehrir Exh. Ka-2, the informant has also stated about the ongoing case between the parties and also stated that in vengeance of that case, the accused person were holding grudges against him. This fact is also supported by Exh. Ka-13 which is statement under Section 161 CrPC recorded by the Investigating Officer and copy of charge-sheet Exh. Kha-3 filed by defence. Therefore, the contention stands that there were enmity between the parties but the enmity is like a double edged sword which may be motive for false implication as well as motive for committing the incident and this aspect is required to be considered with all facts and circumstances of the case.
79. The statement of the accused persons recorded under Section 313 CrPC revelas that all three persons are resident of Amirsa to which the informant also belongs, therefore, they must be knowing each other and there may not be any chance of false identification. PW-3 Ramsevak and PW-4 Triveni Devi are also resident of village Amirsa and they have identified accused persons being eye witnesses to the incident. PW-5 who is independent witness, has also mentioned the names of the accused persons which indicates that he was knowing all three accused persons. PW-5 was not cross-examined in this regard to create any doubt about the identification of the accused persons by PW-5, therefore, no question arises about the identification of the accused persons. So far as the guilt of the accused persons are concerned, all the witnesses of fact who are eye account to the incident, have proved that all three accused persons have opened fire at Ramvir due to which informant Ramvir sustained bullet injuries and ultimately during treatment, after 8-9 days, he succumbed to the injuries. Therefore, guilt of the accused persons are also established by the prosecution.
80. Tehrir-Exh. Ka-2 and statement of informant recorded under Secion 161 CrPC i.e. Exh. Ka-13 are admissible in evidence being dying declaration. Investigating Officer PW-9-S.I. Surjan Singh has proved the statement of informant-Ramvir Exh. Ka-13 and he was not cross-examined in that regard by the prosecution. Therefore, this Court is of the view that the statement of informant-Ramvir Exh. Ka-13 as well as Tehrir Exh. Ka-2 are reliable piece of evidence which also prove the incident as well as the guilt of the accused persons and contentions raised in this regard on behalf of the appellants are baseless.
Individual or joint responsibility
81. Now, in this appeal, the responsibility of the accused persons are required to be adjudicated. In this regard, it has vehemently been contended that the prosecution case is based on common intention of the accused persons and they have been convicted under Section 302/34 IPC but there is no evidence adduced by the prosecution from which common intention of the accused persons can be inferred. There is no evidence for premeeting of mind. No specific role has been assigned to any of the accused persons neither the motive has been established by the prosecution, therefore, conviction recorded by the trial court is bad in the eyes of law.
82. Learned counsel for the appellant, in support of his contentions, has relied upon the case laws renderred by Supreme Court in Jai Bhagwan and Others Vs. State of Haryana reported in (1999) 3 SCC 102, Devilal and Another Vs. State of Rajasthan reported in AIR 1971 SC 1444, Virendra Vs. State of Haryana reported in (2020) 2 SCC 700 and Khema @ Khem Chandra and others Vs. State of Uttar Pradesh reported in (2023) 10 SCC 451.
Common intention as has been defined in Section 34 of the IPC which is being reproduced hereinunder:-
“34. Acts done by several persons in furtherance of common intention.
“When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
83. In the case law Jai Bhagwan and Others (supra), the Hon’ble Supreme Court has held that where the participation of the accused in the crime is proved but a common intention is absent, Section 34 of IPC cannot be invoked. The common intention has to be inferred from the facts and circumstances of the case. It is further held that the common intention has to be inferred from the facts and circumstances of each case. Relevant paragraph No. 10 is reproduced as under :-
“10. To apply Section 34 IPC apart from the fact that there should be two or more accused, tow factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.”
84. It was observed by the Hon’ble Supreme Court, the action of the deceased and his sons coming to the land in possession of the accused group was to irrigate the land which, on the facts of this case, could only amount to criminal trespass within the meaning of Section 441 IPC The right of the accused-appellants, therefore, extended only to causing of harm other than death.
85. In the other case law relied upon by learned counsel for the appellant in Devilal and another (supra), the Honble Supreme Court has distinguished the common intention as defined in Section 34 IPC and the common object as defined under Section 149 IPC The Honble Supreme Court has held that under Section 34 IPC when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words “in furtherance of the common intention of all” are a most essential part of Section 34 of the IPC, It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime. Common intention means a pre-arranged plan.
86. In the facts of above case, there were exchanges of verbal abuses between the two groups and shows that incident took place sudden after some altercation.
87. In another case law relied upon by learned counsel for the appellant in Virender (supra) wherein murder was committed through overt acts of two accused other than the appellant and the case of appellant was separable and no pre-meeting of mind was established. In Virenders (supra) case, Honble Supreme Court relying upon the case of Mohan Singh Vs. State of Punjab reported in AIR 1963 SC 174 has held that-
common intention denotes action in concert, and a prior meeting of minds the acts may be different, and may vary in their character, but they are all actuated by the same common intention. However, prior concert in the sense of a distinct previous plan is not necessary to be proved. As mentioned supra, the common intention to bring about a particular result may well develop on the spot as between a number of persons. Thus, the question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused persons had the common intention to commit the offence with which they could be convicted.
88. From the above case laws, it is very clear that there cannot be any straight jacket formula to determine the liability of the accused persons under Section 34 IPC Common intention can be inferred only on the basis of the circumstances and proven facts of the case. In the case in hand, all the three witnesses of fact have established the common role of the accused persons though specific role has not been assigned to any of the accused but it has been proved by the evidence that all three accused persons were firing at Ramvir. Obviously, it is very natural that in such an incident when three persons are firing at a single person, it would not be possible to observe that which injury has been caused by which accused persons. As per the medical evidences, the death is caused due to shock as a result of firearm injuries specifically the injury from which the pellet was recovered from the peritoneal cavity.
89. As narrated by the eye witnesses, it would not have been possible to observe as to which particular injury caused by a particular accused person. But, in the proven facts, it can easily be inferred that the incident was committed by the accused persons in furtherance of their common intention in the circumstances of the case. There is no need for the prosecution to establish the pre-meeting of mind in any particular manner.
90. It has also been contended by the learned counsel for the appellant that as per the prosecution story, the informant deceased was very much conscious at the time when he reached police station and got a written report prepared on his dictation and thereafter he was taken to the hospital at Sahawar from where he was referred to a superior hospital at Agra and ultimately after 8-9 days he died at S.N., Hospital, Agra. There was ample time for the Investigating Officer to get the dying declaration recorded as is required under law. The prosecution has also failed to produce the bed ticket and other medical documents related with the treatment and condition of the informant deceased which cause doubt on the statement of the deceased recorded under Section 161 CrPC and that statement cannot be admissible in evidence under Section 32 of the Indian Evidence Act neither can be relied upon.
91. Per contra, learned AGA has argued that if the case is otherwise established by cogent and reliable evidences, lapses of investigating officer cannot be taken in favour of the accused. Though, the documents of treatment of the deceased-Ramvir has not been adduced before the court while leading the evidence but only on the lapse of these facts, the other cogent and reliable evidences cannot be ignored. In this regard, a case law Edakkandi Dineshan @ P. Dineshan Vs. State of Kerala reported in (2025) 3 SCC 273 is relevant, wherein Hon’ble Supreme Court has observed as under:-
“26. A cumulative reading of the entire evidence on record suggests that the investigation has not taken place in a proper and disciplined manner. There are various areas where a properly investigation could have strengthened its case. In the case of Paras Yadav & ors. vs. State of Bihar (1999) 2 SCC 126, the Supreme Court observed as under:
Para 8 – ..the lapse on the part of the Investigating Officer should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this Court from the case of Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517.
13.In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.”
92. Upon an overall assessment of the evidence and material available on record, as discussed hereinabove, it is evident that the present case is based on direct evidence. The prosecution has successfully proved the charges against the accused persons through the consistent testimony of the eye-witnesses as well as the dying declaration of the injured informant, who later succumbed to his injuries. In the presence of such direct evidence, the question of motive loses much of its significance. The prosecution has satisfactorily established the manner in which the incident occurred and the involvement of the accused persons therein. The evidence on record clearly proves that the accused persons, acting in furtherance of their common intention, caused firearm injuries to Ramvir with the intention of causing his death. Thus, the essential ingredients of Section 302 read with Section 34 IPC stand duly established. The prosecution has, therefore, proved beyond reasonable doubt that the accused persons committed the murder of Ramvir and are guilty of the offence punishable under Section 302/34 IPC.
Final conviction assessment
93. Having carefully examined the entire evidence on record and the findings recorded by the learned Trial Court, this Court finds no illegality, perversity or material error in the impugned judgment. The findings of the Trial Court are based on a proper appreciation of the oral and documentary evidence and are fully supported by reliable and convincing evidence on record.
94. The prosecution has successfully proved the charges against the accused persons beyond reasonable doubt through the testimony of the eye-witnesses, which stands corroborated by the medical evidence and the dying declaration of the deceased. The appellants have failed to point out any material contradiction or infirmity in the prosecution case which may warrant interference by this Court.
95. The view taken by the Trial Court is a reasonable and plausible view based on the evidence available on record. The conviction recorded and the sentence awarded are in accordance with law and do not call for any interference.
96. Accordingly, in view of the detailed reasoning and evidence discussed above, the present criminal appeal is hereby dismissed, and the impugned judgment of conviction and order of sentence passed by the learned trial court are affirmed.
97. Since the appellants No. 2 Ram Naresh and No. 3 Rakesh are currently on bail, their bail bonds are cancelled, and they are directed to surrender before the learned trial court within a period of four weeks from today to undergo the remaining period of their sentence, failing which the trial court shall take all necessary legal steps to take them into custody. Let a copy of this judgment along with the lower court records be transmitted to the concerned court immediately for compliance and necessary action.
(Divesh Chandra Samant,J.) (Siddharth,J.)
13.07.2026
Karan/ADY
