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"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2423 OF 2009
Deepak Verma .... Appellant
Versus
State of Himachal Pradesh .... Respondent
WITH
CRIMINAL APPEAL NO.157 OF 2010
Dheeraj Verma .... Appellant
Versus
State of Himachal Pradesh .... Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. These appeals have been preferred by Dheeraj Verma (original accused
no.1) and Deepak Verma (original accused no.2) so as to assail the order of
conviction and sentence dated 30.12.2005 rendered in Sessions Trial no.55 of
2003 by the Sessions Judge, Chamba, as also, the decision rendered by the
Himachal Pradesh High Court in Criminal Appeal No.27 of 2006, whereby, the
conviction and sentence awarded by the Sessions Judge, Chamba, on
30.12.2005, came to be upheld on 2.9.2009.
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2. The prosecution, in order to bring home the case against the appellants-
accused examined as many as 27 witnesses. The prosecution story, as is
emerged from the statements of the witnesses, produced by the prosecution,
reveals that Kamini Verma alias Doli resided with her father Arun Kumar PW2 in
Mohalla Sultanpur, Chamba, in the State of Himachal Pradesh. Kamini Verma
was married to Anmol Verma alias Munna on 6.2.2003. Thereafter, she had
been residing along with her husband at Mukerian in the State of Punjab. On
28.7.2003, Kamini Verma came to her father’s house in Chamba from Pathankot.
She had arrived at 05:30 hrs. She had been escorted to her father’s house by
Rakesh Verma (her paternal uncle, i.e., younger brother of her father Arun
Kumar, PW2), and his wife Veera.
3. About a year before the marriage of Kamini Verma with Anmol Verma,
Deepak Verma, appellant-accused no.2 had approached Arun Kumar PW2
(father of Kamini Verma) with a marriage proposal for Kamini Verma, with his
younger brother Dheeraj Verma appellant-accused no.1. Kamini Verma’s father,
Arun Kumar did not accept the proposal. Thereafter, Kamini Verma was married
to Anmol Verma on 6.2.2003. Earlier, Dheeraj Verma and Deepak Verma, were
tenants in the house of Arun Kumar (PW2, father of Kamini Verma). The two
accused were originally residents of Gurdaspur in the State of Punjab. The
father of the accused, namely, Shyam Lal, a goldsmith, had moved to Chamba in
the State of Himachal Pradesh, and had started to reside in the house of Arun
Kumar PW2. Shyam Lal has reportedly now gone back to the State of Punjab.
The affinity between the family of Arun Kumar (PW2, father of Kamini Verma)
and Shyam Lal (father of appellants-accused Dheeraj Verma and Deepak
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Verma) was also based on the fact, that Deepak Verma, appellant-accused no.2,
had been giving home tuitions to Kamini Verma and her brother Deepak Kumar
(PW1).
4. Kamini Verma reached Chamba from Pathankot on 28.7.2003 at about
05:30 hrs. Dheeraj Verma, appellant-accused no.1 and Deepak Verma,
appellant-accused no.2 came to the house of Arun Kumar (PW2, father of Kamini
Verma) at Mohalla Sultanpur, Chamba at about 10:30 hrs. They had come on a
scooter. Dheeraj Verma, appellant-accused no.1, had in his possession, a
double barrel gun. According to the case of the prosecution, after taking
breakfast, Kamini Verma went to the kitchen to clean utensils. Having cleaned
the utensils she came out into the courtyard. As she stepped into the courtyard,
Dheeraj Verma, appellant-accused no.1 fired one shot at her from his double
barrel gun. This shot hit her in the abdomen. Dheeraj Verma, appellant-accused
no.1, then fired another shot at Kamini Verma. The second shot hit her on the
left shoulder. Sumitri Devi (PW4, grandmother of Kamini Verma) who had also
come into the courtyard, tried to catch the two accused who were making good
their escape. Dheeraj Verma, appellant-accused no.1 hit Sumitri Devi PW4 in
her abdomen, chest and on her right wrist, with the butt of his double barrel gun.
Later, when she was medically examined (on 3.8.2003), she was found to have
suffered multiple bruises, but the nature of injuries was found to be simple. Even
though, Sumitri Devi PW4 had picked up a stone and had thrown it at the
appellant-accused no.1, but she had missed her mark.
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5. According to the prosecution story, after two shots had been fired by
Dheeraj Verma, appellant-accused no.1, Deepak Verma, appellant-accused no.2
handed over two cartridges to Dheeraj Verma, appellant-accused no.1. The
appellant-accused no.1 then reloaded his gun and shot at Rakesh Kumar
(maternal uncle of Kamini Verma) who had by then come into the courtyard, and
was trying to lift Kamini Verma. The shot fired at Rakesh Kumar (maternal uncle
of Kamini Verma) hit him on the left side of the lower abdomen. The two
accused then fled away. At the time of occurrence, Sonia (PW3, wife of Rakesh
Kumar, maternal uncle of Kamini Verma) on hearing the first shot had also
rushed to the courtyard. She tried to assist her husband Rakesh Kumar and her
niece Kamini Verma.
6. Both Kamini Verma and Rakesh Kumar were taken to the Zonal Hospital,
Chamba immediately after the occurrence. Rakesh Kumar was declared dead at
the said Hospital at 12:30 hours on the date of the occurrence itself (i.e., on
28.7.2003). He was stated to have died due to a gun shot injury causing rupture
of major vessels and visceral organs leading to hemorrhagic shock and death.
7. The police post, Sultanpur was informed of the occurrence telephonically,
leading to the recording of Daily Diary No.4 at 10:30 a.m. on 28.7.2003. ASI Jog
Raj PW26 along with other police personnel, on receipt of aforesaid information,
proceeded to Zonal Hopital, Chamba. ASI Jog Raj moved an application to the
Senior Medical Officer, Zonal Hospital, Chamba for seeking medical opinion
whether Kamini Verma alias Doli was fit to make a statement. In the first
instance Dr. D.P. Dogra PW11 gave a report at 12:20 hrs. (on 28.7.2003) to the
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effect that Kamini Verma was not fit to make her statement. The said opinion
was tendered as her pulse rate and blood pressure, at that time, were not
recordable, and also because, she had no control over her speech.
Subsequently, at 13:00 hrs. on 28.7.2003 itself, Dr. D.P. Dogra PW11 declared
her medically fit. It was thereafter, that the statement of Kamini Verma came to
be recorded by ASI Jog Raj in the presence of Dr. D.P. Dogra. The statement
recorded was then read out to Kamini Verma, whereupon, in token of its
correctness, she affixed her right thumb impression on the same. Both Dr. D.P.
Dogra PW11 and ASI Jog Raj PW26 recorded their endorsements on the
statement of Kamini Verma. The statement of Kamini Verma was the basis of
registering FIR No.182 of 2003 at Police Station Sadar, Chamba on 28.7.2003.
Kamini Verma repeated the same version of the incident to her father Arun
Kumar PW2 on her way to Amritsar (from Chamba).
8. Kamini Verma, who was originally taken to Zonal Hospital, Chamba, was
referred to Zonal Hospital, Dharamshala. However, on her discharge from Zonal
Hospital, Chamba, she was taken for treatment to Ram Saran Dass, Kishori Lal
Charitable Hospital, Amritsar (Kakkar Hospital, Amritsar) in the State of Punjab.
Kamini Verma died at Kakkar Hospital, Amritsar on 1.8.2003 at 04:00 hrs. In the
post-mortem report of Kamini Verma (Exh.PW13/C) it was opined, that she had
died due to gun short injuries leading to injuries to her abdominal viscera and
disseminated intravascular bleeding leading to shock and death.
9. The pellets, recovered from the wounds of Kamini Verma and from the
dead body of Rakesh Kumar at Zonal Hospital, Chamba, were handed over to
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the police. Inspector Khub Ram PW27, went to the place of occurrence for
inquest. From the spot, i.e., courtyard of the house of Arun Kumar (PW2, father
of Kamini Verma) he collected blood samples from the floor, two plastic caps, 35
pellets lying on the floor, besides 3 pellets embedded in a door of the house.
Two empty cartridges were also recovered from outside the gate of house of
Arun Kumar PW2.
10. On the date of occurrence itself, i.e., on 28.7.2003, the scooter, on which
the appellant-accused nos.1 and 2 had made good their escape was stopped at
Bhatulun Morh at a police “nakka” while they were proceeding towards Khajjiar
from Chamba. Dheeraj Verma and Deepak Verma, appellant-accused nos.1 and
2 were identified. A double barrel gun, which was in their possession, was found
with one live cartridge and one spent cartridge. The gun, the live as well as
spent cartridges, and the scooter on which they were apprehended, bearing
registration no.PB-58-A-0285 were taken into possession by the police. Both the
accused were also taken into custody. On the personal search of both the
accused, four live cartridges were recovered from the pocket of Dheeraj Verma,
appellant-accused no.1. Based on a disclosure statement made on 31.7.2003 by
Dheeraj Verma appellant-accused no.1, 13 more live cartridges beside four
empty cartridges were recovered from a cupboard in his bedroom. The licence
of the double barrel gun was also recovered from their residence.
11. The double barrel gun recovered from the appellant-accused nos.1 and 2
was sent to the Forensic Science Laboratory, Bharari, Shimla, Himachal
Pradesh. In his report, the Assistant Director opined; firstly, that the double
barrel gun recovered from the accused was capable of firing; secondly, that 3
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empty cartridges recovered from the place of occurrence may have been fired
from the recovered gun; and thirdly, that the pellets recovered may have been
fired from the empty cartridges recovered from the spot.
12. On the completion of investigation, the prosecution presented a challan in
the court of Chief Judicial Magistrate, against both the accused, under sections
302 and 323 read with section 34 of the Indian Penal Code, besides section 27 of
the Indian Arms Act. The Chief Judicial Magistrate committed the case for trial to
the Court of Sessions on 22.10.2003. On 12.1.2004 the Sessions Judge,
Chamba, framed the charges, as were proposed by the prosecution. In order to
bring home the charges, the prosecution examined as many as 27 witnesses.
The cumulative effect of the statement of witnesses examined by the prosecution
has been narrated in the foregoing paragraphs. After recording the prosecution
evidence, the statements of Dheeraj Verma, appellant-accused no.1 and Deepak
Verma, appellant-accused no.2 were recorded under Section 313 of the Criminal
Procedure Code. The accused, besides denying the correctness (or knowledge)
of the factual position, with which they were confronted, alleged that a false case
has been registered against them due to business rivalry. It is pertinent to
mention, that the father of the deceased Kamini Verma, i.e., Arun Kumar PW2,
as also, the father of the appellant-accused Dheeraj Verma and Deepak Verma,
namely, Shyam Lal, were admittedly goldsmiths, and were engaged in the said
business.
13. Sessions Trial No.55 of 2003 came to be disposed of on 30.12.2005
whereby the Sessions Judge, Chamba convicted the accused Dheeraj Verma
and Deepak Verma for offences punishable under section 302 and 323 read with
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section 34 of the Indian Penal Code, as also, under section 27 of the Arms Act.
On the date of their conviction, i.e., on 30.12.2005 itself, after affording an
opportunity of hearing, the appellants-accused nos.1 and 2 were sentenced
under Section 302 read with Section 34 of the Indian Penal Code, to
imprisonment for life and to pay fine of Rs.25,000/- each (in default of payment of
fine, they were to undergo further simple imprisonment for two years). The
appellants-accused nos.1 and 2 Dheeraj Verma and Deepak Verma were also
sentenced under Section 323 read with Section 34 of the Indian Penal Code, to
undergo simple imprisonment for a period of six months and to pay a fine of
Rs.1000/- each (in case of default of payment of fine, they were to undergo
further simple imprisonment for one month). The appellants-accused Dheeraj
Verma and Deepak Verma were sentenced to undergo two years rigorous
imprisonment, for the offence punishable under Section 27 of the Arms Act. The
Sessions Judge, Chamba also ordered, that all the substantive punishments
were to run concurrently.
14. Dissatisfied with the order rendered in Sessions Trial No.55 of 2003 by the
Sessions Judge, Chamba on 30.12.2005, the appellants-accused nos.1 and 2
Dheeraj Verma and Deepak Verma preferred Criminal Appeal No.27 of 2006
before the High Court of Himachal Pradesh. Criminal Appeal No.27 of 2006 was,
however, dismissed by the High Court on 2.9.2009, on merits, as well as, on the
quantum of sentence imposed on the appellants-accused.
15. Dissatisfied with the order dated 30.12.2005 passed by the Sessions
Judge, Chamba in Sessions Trial No.55 of 2003, as well as, the order dated
2.9.2009 passed by the High Court of Himachal Pradesh in Criminal Appeal
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No.27 of 2006, the appellants-accused nos.1 and 2 Dheeraj Verma and Deepak
Verma have approached this Court by filing the instant appeals.
16. The first and foremost contention advanced at the hands of the learned
counsel for the appellants was, that the case set up by the prosecution was false
and fabricated. It was submitted, that the facts brought forth by the prosecution
clearly lead to the inference, that there was no involvement whatsoever of the
two accused Dheeraj Verma and Deepak Varma. In so far as the instant aspect
of the matter is concerned, it was the contention of the learned counsel for the
appellants that the statements of Deepak Kumar PW1, Arun Kumar PW2, Sonia
PW3 and Sumitri Devi PW4 reveal, that the two accused were well-known to the
members of the family of the deceased Kamini Verma. In this behalf it was
sought to be asserted, that according to the prosecution version, the two accused
Dheeraj Verma and Deepak Verma had come to reside in the house of Arun
Kumar PW2 along with their father Shyam Lal, as tenants. According to the
learned counsel, it is also the case of the prosecution, that Deepak Verma,
appellant-accused no.2 had been giving home tuitions to the deceased Kamini
Verma and her brother Deepak Kumar PW1. Inspite of being in an effective
position to identify both the accused on account of their long past relationship, it
was submitted, that the names of the two accused Dheeraj Verma and Deepak
Verma came to be disclosed, for the first time at 13:00 hrs., through the
statement of the deceased Kamini Verma, which was recorded by the ASI Jog
Raj PW26. Stated in other words, it is the contention of the learned counsel for
the appellants, that even though the two accused were well-known to the entire
family of the deceased Kamini Verma, yet all the family members of the
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deceased Kamini Vemra remained tight-lipped till the eventual disclosure of the
names of the two accused by Kamini Verma herself, at the Zonal Hospital,
Chamba. It is, therefore, the contention of the learned counsel for the appellant,
that the statements of all the eye-witnesses (Deepak Kumar PW1, Sonia PW3
and Sumitri Devi PW4) who were close family members of the deceased Kamini
Verma and Rakesh Kumar, and had known the two accused for a long time,
should not be relied upon. It is sought to be suggested, that all these close
relations of the deceased Kamini Verma must be deemed to have been tutored,
to make false statements against the appellants Dheeraj Verma and Deepak
Verma at the instance of the investigating officers. It is submitted that the crime in
question came to be committed at 10:30 hrs., on 28.7.2003, and yet none of the
aforesaid eye-witnesses disclosed the names of the offenders. It is sought to be
suggested, that the names would have been disclosed only if they had actually
witnessed the occurrence. It is therefore, submitted that none of the aforesaid
eye witnesses actually witnessed the occurrence. It is, accordingly, the
submission of the learned counsel for the appellant, that the prosecution version
deserves to be rejected outright, and the appellants-accused Dheeraj Verma and
Deepak Verma deserve to be acquitted.
17. We have given our thoughtful consideration to the first and the foremost
contention advanced at the hands of the learned counsel for the appellants, as
has been noticed in the foregoing paragraph. The facts, as they unfold from the
prosecution story reveal, that the occurrence took place at 10:30 hrs. on
28.7.2003. Both Kamini Verma and Rakesh Kumar were taken to the Zonal
Hospital, Chamba immediately after the occurrence. Rakesh Kumar was
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declared dead at 12:30 hrs. on the date of occurrence, i.e., on 28.7.2003 itself.
The condition of Kamini Verma was critical at that juncture. This is evident from
the fact that Dr. D.P. Dogra PW11 gave a report at 12:20 hrs., (on 28.7.2003) to
the effect, that Kamini Verma was not fit to record her statement. The attending
doctor had recorded, that her pulse rate and blood pressure were not recordable.
In the peculiar facts, as have been noticed hereinabove, it is evident that the first
endeavour of all close family members would have been, to have the two injured
Kamini Verma and Rakesh Kumar treated at the Zonal Hospital, Chamba. None
of the close family members could have been expected to proceed to the police
station to lodge a report when both the injured were critical. Full attention for the
welfare of the two close family members would have been the expected
behaviour of all family members. The action to be taken against the assailants,
would have been a matter of secondary concern. The contention of their not
having made any statements at that juncture to the police, cannot therefore, be
considered unnatural. Kamini Verma was declared medically fit at 13:00 hrs., on
28.7.2003 by Dr. D.P. Dogra PW11. She specifically identified the two accused
Dheeraj Verma and Deepak Verma as the perpetrators of the occurrence. There
is no reason whatsoever to doubt the dying declaration made by Kamini Verma.
Besides, the dying declaration of Kamini Verma, the prosecution endeavoured to
establish the guilt of the accused, by producing three eye-witnesses. Deepak
Kumar PW1, (aged 14 years at the time of occurrence), who was in the courtyard
itself at the time of occurrence was the younger brother of the deceased Kamini
Verma. In his deposition, he reiterated the factual position recorded by Kamini
Verma in her dying declaration. The grand-mother of the deceased, namely,
Sumitri Devi PW4, aged 61 years, is a stamped witness. At the time of
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occurrence she was hit by Dheeraj Verma, appellant-accused no.1, in her
abdomen, chest and on her right wrist with the butt of his double barrel gun. She
also identified the accused in her statement. On medical examination she was
found to have suffered multiple bruises, which could have been caused by the
butt of a double barrel gun. Additionally, Sonia PW3 is also an eye-witness
whose statement was recorded. She was the wife of the deceased Rakesh
Kumar. She had come into the courtyard on hearing the first shot fired at Kamini
Verma. The dying declaration of Kamini Verma was supplemented by Sonia
PW3 as well. The aforesaid three witnesses, a young boy, the wife of the
deceased and an old grandmother are natural witness, whose presence at the
place of occurrence, does not cast any shadow of doubt. The prosecution was
able to establish the motive of the appellants-accused in having committed the
crime. In so far as the instant aspect of the matter is concerned, the alleged
motive of declining the marriage proposal of the appellant-accused no.1, at the
hands of his elder brother, appellant-accused no.2 Deepak Verma was reiterated
by Deepak Kumar PW1, Arun Kumar PW2, Sonia PW3 as also Sumitri Devi
PW4, as well as, by Kamini Verma in her statement recorded by ASI Jog Raj
PW26. It is only on account of the rejection of the aforesaid marriage proposal
that Dheeraj Verma and Deepak Verma, the appellants-accused nos.1 and 2, as
an act of retaliation and vengeance, jointly committed the offence in question. It
is also necessary to notice, that no reason whatsoever emerges from the
evidence produced before the Trial Court why the family of the deceased Kamini
Verma and/or Rakesh Kumar would falsely implicate the accused-appellants
nos.1 and 2. The cumulative effect of all the factors mentioned above, clearly
negate the suggestions/ submissions advanced by the learned counsel for the
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appellants as a part of his first contention. It is, therefore, apparent that there is
no merit in the first contention advanced at the hands of the counsel for the
appellants.
18. The second contention advanced at the hands of the learned counsel for
the appellants was limited to the appellant-accused no.2 Deepak Verma. In so
far as the second submission is concerned, it was sought to be asserted that no
role whatsoever has been attributed to appellant-accused no.2 Deepak Verma. It
was pointed out, that as per the prosecution witnesses, the double barrel gun
which came to be fired at Kamini Verma and Rakesh Kumar, had remained in
possession of Dheeraj Verma, appellant-accused no.1 throughout the
occurrence. All the shots were fired by Dheeraj Verma, appellant-accused no.1. It
was pointed out, that as per the prosecution story, it was Dheeraj Verma,
appellant-accused no.1 alone, who had allegedly fired shots, in the first instance
at Kamini Verma, and thereafter, at Rakesh Kumar. It was submitted, that none
of the shots was fired by Deepak Verma appellant-accused no.2. It is submitted,
that even if the prosecution story is examined dispassionately, it would emerge
that Deepak Verma, accused-appellant no.2 was a mere by-stander, and had no
role whatsoever in the commission of the crime in question. In order to buttress
the aforesaid contention, learned counsel for the appellants, in the first instance,
placed reliance on State of Uttar Pradesh vs. Sahrunnisa & Anr. (2009) 15
SCC 452, wherefrom he placed emphatic reliance on the following observations:
“18. There can be no dispute that these two respondents were
present and indeed their mere presence by itself cannot be of
criminal nature in the sense that by their mere presence a common
intention cannot be attributed to them. Indeed, they have not done
anything. No overt act is attributed to them though it was tried to be
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claimed by one of the witnesses that when the police party reached
there they were standing on one leg. This also appears to be a tall
claim without any basis and the High Court has rightly not believed
this story which was tried to be introduced.”
Additionally, reliance was placed on Aizaz & Others vs. State of Uttar Pradesh
(2008) 12 SCC 198. In so far as the instant judgment is concerned, our attention
was invited to the following observations:
“11. …It is a well-recognised canon of criminal jurisprudence that
the courts cannot distinguish between co-conspirators, nor can they
inquire, even if it were possible, as to the part taken by each in the
crime. Where parties go with a common purpose to execute a
common object, each and every person becomes responsible for
the act of each and every other in execution and furtherance of
their common purpose; as the purpose is common, so must be the
responsibility. All are guilty of the principal offence, not of abetment
only. In a combination of this kind a mortal stroke, though given by
one of the parties, is deemed in the eye of the law to have been
given by every individual present and abetting. But a party not
cognizant of the intention of his companion to commit murder is not
liable, though he has joined his companion to do an unlawful act.
The leading feature of this section is the element of participation in
action. The essence of liability under this section is the existence
of a common intention animating the offenders and the participation
in a criminal act in furtherance of the common intention. The
essence is simultaneous consensus of the minds of persons
participating in the criminal action to bring about a particular result.
(See Ramaswami Ayyangar vs. State of T.N. (1976) 3 SCC 779).
The participation need not in all cases be by physical presence. In
offences involving physical violence, normally presence at the
scene of offence may be necessary, but such is not the case in
respect of other offences when the offence consists of diverse acts
which may be done at different times and places. The physical
presence at the scene of offence of the offender sought to be
rendered liable under this section is not one of the conditions of its
applicability in every case. Before a man can be held liable for acts
done by another, under the provisions of this section, it must be
established that: (i) there was common intention in the sense of a
prearranged plan between the two, and (ii) the person sought to be
so held liable had participated in some manner in the act
constituting the offence. Unless common intention and participation
are both present, this section cannot apply.
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12. `Common intention’ implies prearranged plan and acting in
concert pursuant to the prearranged plan. Under this section a
preconcert in the sense of a distinct previous plan is not necessary
to be proved. The common intention to bring about a particular
result may well develop on the spot as between a number of
persons, with reference to the facts of the case and circumstances
of the situation. Though common intention may develop on the
spot, it must, however, be anterior in point of time to the
commission of offence showing a prearranged plan and prior
concert. (See Krishna Govind Patil v. State of Maharashtra – AIR
1963 SC 1413). In Amrik Singh v. State of Punjab [(1972) 4 SCC
(N) 42] it has been held that common intention presupposes prior
concert. Care must be taken not to confuse same or similar
intention with common intention; the partition which divides their
bonds is often very thin, nevertheless the distinction is real and
substantial, and if overlooked will result in miscarriage of justice.
To constitute common intention, it is necessary that intention of
each one of them be known to the rest of them and shared by
them. Undoubtedly, it is a difficult thing to prove even the intention
of an individual and, therefore, it is all the more difficult to show the
common intention of a group of persons. But however difficult may
be the task, the prosecution must lead evidence of facts,
circumstances and conduct of the accused from which their
common intention can be safely gathered. In Maqsoodan v. State
of U.P. [(1983) 1 SCC 218] it was observed that the prosecution
must lead evidence from which the common intention of the
accused can be safely gathered. In most cases it has to be inferred
from the act, conduct or other relevant circumstances of the case in
hand. The totality of the circumstances must be taken into
consideration in arriving at a conclusion whether the accused had a
common intention to commit an offence for which they can be
convicted. The facts and circumstances of cases vary and each
case has to be decided keeping in view the facts involved.
Whether an act is in furtherance of the common intention is an
incident of fact and not of law. In Bhaba Nanda Sarma v. State of
Assam [(1977) 4 SCC 396] it was observed that the prosecution
must prove facts to justify an inference that all participants of the
acts had shared a common intention to commit the criminal act
which was finally committed by one or more of the participants.
Mere presence of a person at the time of commission of an offence
by the confederates is not, in itself sufficient to bring his case within
the purview of Section 34, unless community of designs is proved
against him (See Malkhan Singh v. State of U.P. (1975) 3 SCC
311). In the Oxford English Dictionary, the word `furtherance’ is
defined as `action of helping forward’. Adopting this definition,
Rusell says that: `it indicates some kind of aid or assistance
producing an effect in future’ and adds that any act may be
regarded as done in furtherance of the ultimate felony if it is a step
intentionally taken, for the purpose of `effecting that felony’.
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(Russel on Crime, 12th Edn., Vol.I, pp. 487 and 488). In Shankarlal
Kacharabhai v. State of Gujarat [AIR 1965 SC 260] this Court has
interpreted the word `furtherance’ as `advancement or promotion.”
Based on the observations recorded in the judgments relied upon it was
submitted, that the appellant-accused no.2 Deepak Verma had no role in the
crime, except that he was present at the place of occurrence. It is therefore
submitted, that his mere presence along with Dheeraj Verma accused-appellant
no.1, cannot be a valid basis for his conviction.
19. It is not possible for us to accept the contention advanced at the hands of
the learned counsel for the appellant to the effect, that the appellant-accused
no.2 Deepak Verma was not an active participant in the crime in question. The
evidence produced by the prosecution clearly establishes that the two accused-
appellants nos.1 and 2 Dheeraj Verma and Deepak Verma had come to the
house of Arun Kumar PW2 to commit the crime in question on a scooter. It is
also apparent that at one juncture only two cartridges can be loaded in a double
barrel gun. With the cartridges loaded in the gun, the appellant-accused no.1
Dheeraj Verma had fired the first two shots at Kamini Verma. Thereafter, there
were no live cartridges in the gun. Sumitri Devi, while appearing as PW4, pointed
out, that after the appellant-accused no.1 Dheeraj Verma had fired two shots at
Kamini Verma, the appellant-accused no.2 Deepak Verma provided two live
cartridges to the appellant-accused no.1 Dheeraj Verma. Dheeraj Verma then
reloaded his double barrel gun with the two live cartridges furnished by appellant-
accused no.2 Deepak Verma, and fired one further shot at the deceased Rakesh
Kumar. After the commission of the crime, Dheeraj Verma and Deepak Verma,
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jointly made good their escape on a scooter bearing registration no. PB-58-A-
0285. When the two accused were apprehended at Bataluan Morh at a police
“naka” the appellant-accused no.2 Deepak Verma was driving the scooter,
whereas, appellant-accused no.1 Dheeraj Verma was pillion riding with him. It,
accordingly emerges, that after having committed the crime, the appellant-
accused no.2 Deepak Verma, also helped his brother appellant-accused no.1
Dheeraj Verma to make good his escape from the place of occurrence. It is,
therefore, not possible for us to conclude that appellant-accused no.2 Deepak
Verma was merely a by-stander, who was incidentally present at the place of
occurrence. In our considered view both Dheeraj Verma and Deepak Verma
jointly planned and committed the crime. The judgments relied upon by the
learned counsel for appellants are inapplicable to the facts and circumstances of
this case. Various eye-witnesses had identified the two accused who had
committed the offence. The dying declaration of Kamini Verma and the
statements of her relations, who had appeared as prosecution witness, duly
establishes the commission of the crime, as well as, the common motive for the
two accused to had joined hands in committing the crime. The handing over of
two live cartridges by the appellant-accused no.2 Deepak Verma to his brother
Dheeraj Verma, after he had fired two shots from the double barrel gun with
which the crime in question was committed, completely demolishes the
contention advanced at the hands of the learned counsel for the appellants, in so
far as the participation of the appellant-accused no.2 Deepak Verma in the crime
is concerned. For the reasons recorded herein above, we find no merit even in
the second contention advanced at the hands of the counsel for the appellants.
18
20. The third contention advanced at the hands of the learned counsel for the
appellants was, that there was no motive whatsoever for the appellant-accused
no.2 Deepak Verma to have committed the offence in question. It is the
submission of the learned counsel for the appellants, that insult on account of
non acceptance of the marriage proposal already referred to above, may have
been felt by appellant-accused no.1 Dheeraj Verma. There was no question of
the appellant-accused no.2 Deepak Verma to have felt any insult, or to have any
motive to commit the offence in question. On account of lack of motive to commit
the crime on the part of appellant-accused no.2 Deepak Verma, learned counsel
emphatically submits, that the appellant-accused no.2 Deepak Verma deserves
acquittal. In order to supplement his instant contention, learned counsel placed
reliance on a judgment rendered by this Court in State of Uttar Pradesh v.
Rajvir, (2007) 15 SCC 545, wherein the State had approached this Court against
the acquittal of the respondent. The High Court, while hearing the appeal against
the respondent had re-appreciated the evidence by re-evaluating the statement
of witnesses. While two of the accused were found to be guilty of murder, and
accordingly, the sentence passed by the Trial Court against them was upheld;
the High Court was doubtful of the participation of the respondent in the murder
of the deceased, according to learned counsel, solely on the ground that there
was no motive for the respondent to commit the murder of the deceased.
Adopting a cautious approach, the High Court had acquitted the respondent by
giving him the benefit of doubt. This Court found merit in the determination of the
High Court, and accordingly, upheld the decision of the High Court by recording
the following observations:
19
“8. We have carefully considered the submissions made by the
learned counsel for the parties. It is the case of the prosecution
that the other two accused, namely, Chander and Chhotey had
motive against the deceased and the respondent had no motive
whatsoever against the deceased; all the three accused were
friendly among them. It is true that PWs 1 to 3 have supported the
prosecution case that all the three accused went to the house of the
deceased on the date of the incident and the respondent called the
deceased to attend a patient immediately. PWs 1 to 3 also stated
that all the three accused assaulted the deceased but the evidence
of PWs 1 to 3 is specific and consistent as to the assault by the
accused Chander on the deceased with a knife. As to the assault
by the respondent, the statements of the witnesses are general and
vague. No specific overt act is attributed to the respondent. It may
also be mentioned here that there was no recovery of knife from the
respondent. There was recovery of bloodstained clothes from the
accused Chander. It is possible that on the accused Chander and
Chhotey asking the respondent to accompany them to the house of
the deceased to show a patient or the respondent himself might
have taken a patient also for examination by the doctor. Mere
presence of the respondent on the spot when the incident took
place was not sufficient to hold that the respondent had shared the
common intention to kill the deceased; particularly so when the
respondent had no motive whatsoever. PW1, the brother of the
deceased himself has stated that the respondent had no ill-will or
motive against the deceased. It is under these circumstances, the
motive aspect assumed importance. There is no dispute as to the
legal position that in the absence of motive; or the alleged motive
having not been established; an accused cannot be convicted if the
prosecution is (sic not) successful in establishing the crime said to
have been committed by an accused by other evidence. At any
rate, a doubt definitely arose in the case in hand as to what was the
reason or motive for the respondent to commit the murder of the
deceased. In State of U.P. v. Hari Prasad [(1974) 3 SCC 673] this
Court dealing with the aspect of motive has stated thus: (SCC pp.
674-75, para 2):
“This is not to say that even if the witnesses are truthful, the
prosecution must fail for the reason that the motive of the
crime is difficult to find. For the matter of fact, it is never
incumbent on the prosecution to prove the motive for the
crime. And often times, a motive is indicated to heighten the
probability that the offence was committed by the person
who was impelled by the motive. But, if the crime is alleged
to have been committed for a particular motive, it is relevant
to inquire whether the pattern of the crime fits in with the
alleged motive.”
20
The present case is not the one where the prosecution has
successfully proved the guilt of the respondent beyond reasonable
doubt by other evidence on record to say motive aspect was
immaterial.”
Based on the aforesaid factual and legal position, it is submitted, that the
appellant-accused no. 2 Deepak Verma deserved acquittal.
21. We have examined the third submission canvassed at the hands of the
learned counsel for the appellants, based on the plea of motive. While dealing
with the second contention, advanced at the hands of the learned counsel for the
appellants, we have already concluded hereinabove, that there was sufficient
motive even for the appellant-accused no.2 Deepak Verma to commit the crime
in question, in conjunction with his younger brother Dheeraj Verma, appellant-
accused no.1. Be that as it may, it would be relevant to indicate, keeping in mind
the observations recorded by this Court as have been brought to our notice by
the learned counsel for the appellants (which we have extracted hereinabove),
that proof of motive is not a sine qua non before a person can be held guilty of
the commission of a crime. Motive being a matter of the mind, is more often than
not, difficult to establish through evidence. In our view, the instant contention
advanced by the learned counsel for the appellant is misconceived in the facts
and circumstances of the case. In the present case, there is extensive oral
evidence in the nature of the statements of three eye-witnesses out of which one
21
is a stamped witness, that appellant-accused no.2 Deepak Verma was an active
participant in the crime in question. There is also the dying declaration of Kamini
Verma implicating both the accused. In the case relied upon by the learned
counsel for the appellant, the oral evidence produced by the prosecution to
implicate the respondent with the commission of the crime, was not clear.
Accordingly, in the absence of the prosecution having been able to establish
even the motive, the High Court (as well as, this Court) granted the respondent
the benefit of doubt. That is not so, in so far as the present controversy is
concerned. The oral evidence against the appellant-accused no.2 Deepak
Verma is clear and unambiguous. Besides, motive of appellant-accused no.2
Deepak Verma is also fully established. We are therefore satisfied, that the
judgment relied upon by the learned counsel for the appellant has no relevance
to the present case. We, therefore, find no merit even in the third contention
advanced at the hands of the learned counsel for the appellants.
22. The last contention advanced at the hands of the learned counsel for the
appellant was, that the dying declaration of Kamini Verma which became the
basis of registering the First Information Report itself, was forged and fabricated.
Learned counsel for the appellants, vehemently contended that the very
foundation of the prosecution story itself being shrouded in suspicious
circumstances, must lead to the inevitable conclusion, that the appellants-
accused have been falsely implicated in the crime in question. In so far as the
instant aspect of the matter is concerned, it was the vehement contention of the
learned counsel for the appellants, that Kamini Verma was declared medically
22
unfit to make a statement by Dr. D.P. Dogra PW11 at 12:20 hrs., on 28.7.2003.
Pointing out to Exhibit PW11/B, it was the submission of the learned counsel for
the appellants, that the medical report, showing that Kamini Verma was not fit to
make a statement, had been made on the ground that her pulse rate and blood
pressure were not recordable. According to the learned counsel, within just 40
minutes, the same Dr. D.P. Dogra PW11 gave a report at 13:00 hrs., that Kamini
Verma was fit to record her statement. Learned counsel for the appellants, also
invited the court’s attention to Exhibit PW11/C, PW23/A and PW26/A so as to
point out a number of discrepancies. It was submitted, that there are a number of
cuttings/overwritings, of the time at which the endorsements on dying declaration
of Kamini Verma were recorded. It is submitted, that the time has been altered
from 12:20 p.m. to 1:00 p.m. This, according to the learned counsel was done, to
match with the time given by Dr. D.P. Dogra PW11. Pointing to the endorsement
of Dr. D.P. Dogra, it was submitted that Dr. D.P. Dogra had endorsed the dying
declaration at 13:00 hrs. It was pointed out, that the time of the endorsement
made by ASI Jog Raj PW26 (under the dying declaration of Kamini Verma) was
recorded at 1:30 p.m., which was subsequently altered to 1:00 p.m. to match with
the time recorded in the endorsement made by Dr. D.P. Dogra PW11.
Additonally, it was the contention of the learned counsel for the appellants, that
the language of the dying declaration itself shows, that the same was not a
voluntary statement made by Kamini Verma, but actually the handiwork of ASI
Jog Raj PW26, who had recorded the aforesaid statement. In this regard learned
counsel for the appellants pointed out, that various words and observations were
used in the dying declaration, which are in use of police personnel (and/or
advocates), but not in the use of common persons. It is, therefore, sought to be
23
submitted that the dying declaration of Kamini Verma, allegedly recorded at
13:00 hrs., on 28.7.2003 at Zonal Hospital, Chamba not being her own voluntary
statement, was liable to be discarded from the prosecution version. In case the
same is ignored, the entire prosecution story, according to the learned counsel
for the appellants, would crumble like a house of cards.
23. We have considered the last submission advanced at the hands of the
learned counsel for the appellants. There can be no doubt that there are certain
discrepancies in the time recorded in the dying declaration. Additionally, there
can also be no doubt that certain words which are not in common use have found
place in the dying declaration made by Kamini Verma. Despite the aforesaid, we
find no merit in the submission advanced at the hands of the learned counsel for
the appellant. It is not possible for us to accept, that Kamini Verma was not fit to
make her statement when she actually recorded the same in the presence of ASI
Jog Raj PW26 and Dr.D.P. Dogra PW11. The very medical report, relied upon
by the learned counsel for the appellants, which depicted that the pulse rate and
blood pressure of Kamini Verma was not recordable, also reveals, that on having
been given treatment her blood pressure improved to 140/70 and her pulse rate
improved to 120 per minute. This aspect of the medical report is not subject
matter of challenge. The fact that the incident occurred on 28.7.2003 and Kamini
Verma eventually died on 1.8.2003, i.e., 4 days after the recording of the dying
declaration also shows that she could certainly have been fit to make her dying
declaration on 28.7.2003. Her fitness was actually recorded on the dying
declaration by Dr. D.P. Dogra PW11. A number of prosecution witnesses reveal
24
that she was conscious and was able to speak. Kamini Verma after having
recorded her statement before ASI Jog Raj PW26, also repeated the same
version of the incident (as she had narrated while recording her dying
declaration) to her father Arun Kumar PW2, when she was being shifted from
Chamba to Amritsar for medical treatment. Moreover, Dr. D.P. Dogra PW11
appeared as a prosecution witness, and affirmed the veracity of her being in a fit
condition to make the statement. There is no reason whatsoever to doubt the
statement of Dr. D.P. Dogra PW11. The question of doubting the dying
declaration made by Kamini Verma could have arisen if there had been other
cogent evidence to establish any material discrepancy therein. As already
noticed hereinabove, three eye witnesses, namely, Deepak Kumar PW1, Sonia
PW3 and Sumitri Devi PW4 have supported the version of the factual position
depicted in the statement of Kamini Verma. It is, therefore, not possible for us to
accept, that the statement of Kamini Verma was either false or fabricated, or that,
the statement was manipulated at the hands of the prosecution to establish the
guilt of the appellants-accused nos.1 and 2 Dheeraj Verma and Deepak Verma,
or that she was not medically fit to make a statement. The discrepancies in
recording time, as well as, the overwriting pointed out are too trivial to brush
aside the overwhelming oral evidence produced by the prosecution, details
whereof have been repeatedly referred to by us, while dealing with the various
submissions advanced at the hands of the learned counsel for the appellants.
We, therefore, find no merit even in the last contention advanced at the hands of
the counsel for the appellants.
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24. In view of the above we hereby affirm the order passed by the Trial Court
dated 30.12.2005 (in Sessions Trial No.55 of 2003) and also, the order passed
by the High Court dated 2.9.2009 (in Criminal Appeal No.27 of 2006). Both the
appeals preferred by appellants-accused nos.1 and 2, Dheeraj Verma and
Deepak Verma are, accordingly, dismissed.
…………………………….J.
(R.M. Lodha)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi
October 11, 2011