{"id":23093,"date":"2011-10-11T00:00:00","date_gmt":"2011-10-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deepak-verma-vs-state-of-h-p-on-11-october-2011"},"modified":"2016-11-18T14:23:43","modified_gmt":"2016-11-18T08:53:43","slug":"deepak-verma-vs-state-of-h-p-on-11-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deepak-verma-vs-state-of-h-p-on-11-october-2011","title":{"rendered":"Deepak Verma vs State Of H.P on 11 October, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Deepak Verma vs State Of H.P on 11 October, 2011<\/div>\n
Author: J S Khehar<\/div>\n
Bench: R.M. Lodha, Jagdish Singh Khehar<\/div>\n
                                                             1\n\n\n                                                                               \"REPORTABLE\"\n\n\n                           IN THE SUPREME COURT OF INDIA\n\n\n                         CRIMINAL APPELLATE JURISDICTION\n\n\n                          CRIMINAL APPEAL NO.2423  OF 2009\n\n\n\n\nDeepak Verma                                                        .... Appellant\n\n\n        Versus\n\n\nState of Himachal Pradesh                                           .... Respondent\n\n\n                                               WITH\n\n\n                           CRIMINAL APPEAL NO.157 OF 2010\n\n\nDheeraj Verma                                                       .... Appellant\n\n\n        Versus\n\n\nState of Himachal Pradesh                                           .... Respondent\n\n\n\n\n\n                                        J U D G M E N T\n<\/pre>\n
JAGDISH SINGH KHEHAR, J.\n<\/p>\n<\/p>\n
1.      These appeals have been preferred by Dheeraj Verma (original accused <\/p>\n
no.1)   and   Deepak   Verma   (original   accused   no.2)   so   as   to   assail   the   order   of  <\/p>\n
conviction  and  sentence  dated  30.12.2005  rendered   in   Sessions   Trial   no.55  of <\/p>\n
2003   by   the   Sessions   Judge,   Chamba,   as   also,   the   decision   rendered   by   the <\/p>\n
Himachal Pradesh  High  Court  in Criminal Appeal  No.27  of  2006,  whereby,   the  <\/p>\n
conviction   and   sentence   awarded   by   the   Sessions   Judge,   Chamba,   on <\/p>\n
30.12.2005, came to be upheld on 2.9.2009.\n<\/p>\n
\n                                                 2<\/span><\/p>\n
2.      The prosecution, in order to bring home the case against the appellants-<\/p>\n
accused   examined   as   many   as   27   witnesses.     The   prosecution   story,   as   is <\/p>\n
emerged   from   the   statements   of   the   witnesses,   produced   by   the   prosecution,  <\/p>\n
reveals that Kamini Verma alias Doli resided with her father Arun Kumar PW2 in  <\/p>\n
Mohalla Sultanpur, Chamba, in the State of Himachal Pradesh.   Kamini Verma  <\/p>\n
was   married   to   Anmol   Verma   alias   Munna   on   6.2.2003.     Thereafter,   she   had  <\/p>\n
been  residing along with  her husband  at Mukerian in the State  of Punjab.    On <\/p>\n
28.7.2003, Kamini Verma came to her father’s house in Chamba from Pathankot.  <\/p>\n
She had arrived at 05:30 hrs.   She had been escorted to her father’s house by  <\/p>\n
Rakesh   Verma   (her   paternal   uncle,   i.e.,   younger   brother   of   her   father   Arun  <\/p>\n
Kumar, PW2), and his wife Veera.\n<\/p>\n<\/p>\n
3.      About   a   year   before   the   marriage   of   Kamini   Verma   with   Anmol   Verma, <\/p>\n
Deepak   Verma,   appellant-accused   no.2   had   approached   Arun   Kumar   PW2 <\/p>\n
(father   of   Kamini   Verma)   with   a   marriage   proposal   for   Kamini   Verma,   with   his  <\/p>\n
younger brother Dheeraj Verma appellant-accused no.1.  Kamini Verma’s father,  <\/p>\n
Arun Kumar did not accept the proposal.  Thereafter, Kamini Verma was married  <\/p>\n
to Anmol Verma on 6.2.2003. Earlier, Dheeraj Verma and Deepak Verma, were  <\/p>\n
tenants  in  the  house   of  Arun   Kumar   (PW2,  father   of  Kamini  Verma).    The   two  <\/p>\n
accused   were   originally   residents   of   Gurdaspur   in   the   State   of   Punjab.     The <\/p>\n
father of the accused, namely, Shyam Lal, a goldsmith, had moved to Chamba in  <\/p>\n
the State of Himachal Pradesh, and had started to reside in the house of Arun  <\/p>\n
Kumar PW2.   Shyam Lal has reportedly now gone back to the State of Punjab.  <\/p>\n
The   affinity   between   the   family  of   Arun   Kumar   (PW2,  father   of   Kamini   Verma)  <\/p>\n
and   Shyam   Lal   (father   of   appellants-accused   Dheeraj   Verma   and   Deepak  <\/p>\n
                                                 3<\/span><\/p>\n
Verma) was also based on the fact, that Deepak Verma, appellant-accused no.2,  <\/p>\n
had been giving home tuitions to Kamini  Verma and her brother Deepak Kumar  <\/p>\n
(PW1).\n<\/p>\n<\/p>\n
4.      Kamini   Verma   reached   Chamba   from   Pathankot   on   28.7.2003   at   about <\/p>\n
05:30   hrs.     Dheeraj   Verma,   appellant-accused   no.1   and   Deepak   Verma, <\/p>\n
appellant-accused no.2 came to the house of Arun Kumar (PW2, father of Kamini  <\/p>\n
Verma) at Mohalla Sultanpur, Chamba at about 10:30 hrs.  They had come on a <\/p>\n
scooter.     Dheeraj   Verma,   appellant-accused   no.1,   had   in   his   possession,   a  <\/p>\n
double   barrel   gun.   According   to   the   case   of   the   prosecution,   after   taking <\/p>\n
breakfast, Kamini Verma went to the kitchen to clean utensils.   Having cleaned <\/p>\n
the utensils she came out into the courtyard.  As she stepped into the courtyard,  <\/p>\n
Dheeraj   Verma,   appellant-accused   no.1   fired   one   shot   at   her   from   his   double  <\/p>\n
barrel gun.  This shot hit her in the abdomen.  Dheeraj Verma, appellant-accused  <\/p>\n
no.1, then fired another shot at Kamini Verma.   The second shot hit her on the  <\/p>\n
left shoulder.   Sumitri Devi (PW4, grandmother of Kamini Verma) who had also <\/p>\n
come into the courtyard, tried to catch the two accused who were making good <\/p>\n
their  escape.     Dheeraj   Verma,   appellant-accused  no.1  hit  Sumitri  Devi   PW4  in  <\/p>\n
her abdomen, chest and on her right wrist, with the butt of his double barrel gun.  <\/p>\n
Later, when she was medically examined (on 3.8.2003), she was found to have  <\/p>\n
suffered multiple bruises, but the nature of injuries was found to be simple.  Even  <\/p>\n
though,   Sumitri   Devi   PW4   had   picked   up   a   stone   and   had   thrown   it   at   the  <\/p>\n
appellant-accused no.1, but she had missed her mark.\n<\/p>\n
\n                                                     4<\/span><\/p>\n
5.       According   to   the   prosecution   story,   after   two   shots   had   been   fired   by <\/p>\n
Dheeraj Verma, appellant-accused no.1, Deepak Verma, appellant-accused no.2  <\/p>\n
handed   over   two   cartridges   to   Dheeraj   Verma,   appellant-accused   no.1.     The  <\/p>\n
appellant-accused   no.1   then   reloaded   his   gun   and   shot   at   Rakesh   Kumar  <\/p>\n
(maternal uncle of Kamini Verma) who had by then come into the courtyard, and  <\/p>\n
was trying to lift Kamini Verma.  The shot fired at Rakesh Kumar (maternal uncle  <\/p>\n
of   Kamini   Verma)   hit   him   on   the   left   side   of   the   lower   abdomen.     The   two  <\/p>\n
accused then fled away.  At the time of occurrence, Sonia (PW3, wife of Rakesh <\/p>\n
Kumar,   maternal   uncle   of   Kamini   Verma)   on   hearing   the   first   shot   had   also <\/p>\n
rushed to the courtyard. She tried to assist her husband Rakesh Kumar and her <\/p>\n
niece Kamini Verma.\n<\/p>\n<\/p>\n
6.       Both Kamini Verma and Rakesh Kumar were taken to the Zonal Hospital, <\/p>\n
Chamba immediately after the occurrence.  Rakesh Kumar was declared dead at  <\/p>\n
the   said   Hospital   at   12:30   hours   on   the   date   of   the   occurrence   itself   (i.e.,   on  <\/p>\n
28.7.2003).  He was stated to have died due to a gun shot injury causing rupture  <\/p>\n
of major vessels and visceral organs leading to hemorrhagic shock and death.<\/p>\n
7.       The police post, Sultanpur was informed of the occurrence telephonically,  <\/p>\n
leading to the recording of Daily Diary No.4 at 10:30 a.m. on 28.7.2003. ASI Jog  <\/p>\n
Raj PW26 along with other police personnel, on receipt of aforesaid information, <\/p>\n
proceeded to Zonal Hopital, Chamba.   ASI Jog Raj moved an application to the <\/p>\n
Senior   Medical   Officer,   Zonal   Hospital,   Chamba   for   seeking   medical   opinion <\/p>\n
whether   Kamini   Verma   alias   Doli   was   fit   to   make   a   statement.     In   the   first  <\/p>\n
instance Dr. D.P. Dogra PW11 gave a report at 12:20 hrs. (on 28.7.2003) to the  <\/p>\n
                                                    5<\/span><\/p>\n
effect  that  Kamini  Verma  was  not  fit to  make her statement.    The said opinion <\/p>\n
was   tendered   as   her   pulse   rate   and   blood   pressure,   at   that   time,   were   not <\/p>\n
recordable,   and   also   because,   she   had   no   control   over   her   speech.  <\/p>\n
Subsequently, at 13:00 hrs. on 28.7.2003 itself, Dr. D.P. Dogra PW11 declared <\/p>\n
her medically fit.   It was thereafter, that the statement of Kamini Verma came to  <\/p>\n
be recorded by ASI Jog Raj in the presence of Dr. D.P. Dogra. The statement <\/p>\n
recorded   was   then   read   out   to   Kamini   Verma,   whereupon,   in   token   of   its <\/p>\n
correctness, she affixed her right thumb impression on the same.  Both Dr. D.P. <\/p>\n
Dogra   PW11   and   ASI   Jog   Raj   PW26   recorded   their   endorsements   on   the  <\/p>\n
statement of Kamini Verma.   The statement of Kamini Verma was the basis of  <\/p>\n
registering FIR No.182 of 2003 at Police Station Sadar, Chamba on 28.7.2003.  <\/p>\n
Kamini   Verma   repeated   the   same   version   of   the   incident   to   her   father   Arun  <\/p>\n
Kumar PW2 on her way to Amritsar (from Chamba).\n<\/p>\n<\/p>\n
8.      Kamini Verma, who was originally taken to Zonal Hospital, Chamba, was  <\/p>\n
referred to Zonal Hospital, Dharamshala.  However, on her discharge from Zonal <\/p>\n
Hospital, Chamba, she was taken for treatment to Ram Saran Dass, Kishori Lal  <\/p>\n
Charitable Hospital, Amritsar (Kakkar Hospital, Amritsar) in the State of Punjab.  <\/p>\n
Kamini Verma died at Kakkar Hospital, Amritsar on 1.8.2003 at 04:00 hrs.  In the <\/p>\n
post-mortem report of Kamini Verma (Exh.PW13\/C) it was opined, that she had  <\/p>\n
died   due   to   gun   short   injuries   leading   to   injuries   to   her   abdominal   viscera   and  <\/p>\n
disseminated intravascular bleeding leading to shock and death.  <\/p>\n
9.      The   pellets,   recovered   from   the   wounds   of   Kamini   Verma   and   from   the  <\/p>\n
dead  body of  Rakesh Kumar at Zonal Hospital, Chamba, were handed over to <\/p>\n
                                                     6<\/span><\/p>\n
the   police.     Inspector   Khub   Ram   PW27,   went   to   the   place   of   occurrence   for <\/p>\n
inquest.  From the spot, i.e., courtyard of the house of Arun Kumar (PW2, father <\/p>\n
of Kamini Verma) he collected blood samples from the floor, two plastic caps, 35  <\/p>\n
pellets   lying   on   the   floor,   besides   3   pellets   embedded   in   a   door   of   the   house.  <\/p>\n
Two   empty   cartridges   were   also   recovered   from   outside   the   gate   of   house   of <\/p>\n
Arun Kumar PW2.\n<\/p>\n<\/p>\n
10.      On the date of occurrence itself, i.e., on 28.7.2003, the scooter, on which  <\/p>\n
the appellant-accused nos.1 and 2 had made good their escape was stopped at <\/p>\n
Bhatulun Morh at a police “nakka” while they were proceeding towards Khajjiar  <\/p>\n
from Chamba.  Dheeraj Verma and Deepak Verma, appellant-accused nos.1 and  <\/p>\n
2 were identified.  A double barrel gun, which was in their possession, was found  <\/p>\n
with   one   live   cartridge   and   one   spent   cartridge.     The   gun,   the   live   as   well   as  <\/p>\n
spent   cartridges,   and   the   scooter   on   which   they   were   apprehended,   bearing  <\/p>\n
registration no.PB-58-A-0285 were taken into possession by the police.  Both the  <\/p>\n
accused   were   also   taken   into   custody.     On   the   personal   search   of   both   the <\/p>\n
accused, four live cartridges were recovered from the pocket of Dheeraj Verma,  <\/p>\n
appellant-accused no.1. Based on a disclosure statement made on 31.7.2003 by  <\/p>\n
Dheeraj   Verma   appellant-accused   no.1,   13   more   live   cartridges   beside   four  <\/p>\n
empty cartridges were recovered from a cupboard in his bedroom.   The licence  <\/p>\n
of the double barrel gun was also recovered from their residence.<\/p>\n
11.      The double barrel gun recovered from the appellant-accused nos.1 and 2  <\/p>\n
was   sent   to   the   Forensic   Science   Laboratory,   Bharari,   Shimla,   Himachal  <\/p>\n
Pradesh.     In   his   report,   the   Assistant   Director   opined;   firstly,   that   the   double  <\/p>\n
barrel   gun   recovered   from   the   accused   was   capable   of   firing;   secondly,   that   3  <\/p>\n
                                                  7<\/span><\/p>\n
empty  cartridges   recovered   from  the  place   of  occurrence  may  have   been  fired  <\/p>\n
from the recovered gun; and thirdly,  that the pellets  recovered may have  been  <\/p>\n
fired from the empty cartridges recovered from the spot.<\/p>\n
12.     On the completion of investigation, the prosecution presented a challan in  <\/p>\n
the court of Chief Judicial Magistrate, against both the accused, under sections  <\/p>\n
302 and 323 read with section 34 of the Indian Penal Code, besides section 27 of  <\/p>\n
the Indian Arms Act.  The Chief Judicial Magistrate committed the case for trial to  <\/p>\n
the   Court   of   Sessions   on   22.10.2003.     On   12.1.2004   the   Sessions   Judge, <\/p>\n
Chamba, framed the charges, as were proposed by the prosecution.  In order to  <\/p>\n
bring   home   the   charges,   the   prosecution   examined   as   many   as   27   witnesses.  <\/p>\n
The cumulative effect of the statement of witnesses examined by the prosecution  <\/p>\n
has been narrated in the foregoing paragraphs.   After recording the prosecution  <\/p>\n
evidence, the statements of Dheeraj Verma, appellant-accused no.1 and Deepak <\/p>\n
Verma, appellant-accused no.2 were recorded under Section 313 of the Criminal  <\/p>\n
Procedure Code.  The accused, besides denying the correctness (or knowledge)  <\/p>\n
of the factual position, with which they were confronted, alleged that a false case  <\/p>\n
has   been   registered   against   them   due   to   business   rivalry.     It   is   pertinent   to <\/p>\n
mention, that the father of the deceased Kamini Verma, i.e., Arun Kumar PW2,  <\/p>\n
as also, the father of the appellant-accused Dheeraj Verma and Deepak Verma, <\/p>\n
namely,  Shyam Lal, were admittedly goldsmiths, and were engaged in the said  <\/p>\n
business.\n<\/p>\n<\/p>\n
13.     Sessions   Trial   No.55   of   2003   came   to   be   disposed   of   on   30.12.2005  <\/p>\n
whereby   the   Sessions   Judge,   Chamba   convicted   the   accused   Dheeraj   Verma <\/p>\n
and Deepak Verma for offences punishable under section 302 and 323 read with  <\/p>\n
                                                   8<\/span><\/p>\n
section 34 of the Indian Penal Code, as also, under section 27 of the Arms Act.  <\/p>\n
On   the   date   of   their   conviction,   i.e.,   on   30.12.2005   itself,   after   affording   an  <\/p>\n
opportunity   of   hearing,   the   appellants-accused   nos.1   and   2   were   sentenced <\/p>\n
under   Section   302   read   with   Section   34   of   the   Indian   Penal   Code,   to  <\/p>\n
imprisonment for life and to pay fine of Rs.25,000\/- each (in default of payment of  <\/p>\n
fine,   they   were   to   undergo   further   simple   imprisonment   for   two   years).     The  <\/p>\n
appellants-accused   nos.1   and  2  Dheeraj  Verma  and  Deepak  Verma  were   also <\/p>\n
sentenced under Section 323 read with Section 34 of the Indian Penal Code, to  <\/p>\n
undergo   simple   imprisonment   for   a   period   of   six   months   and   to   pay   a   fine   of <\/p>\n
Rs.1000\/-   each   (in   case   of   default   of   payment   of   fine,   they   were   to   undergo <\/p>\n
further   simple   imprisonment   for   one   month).   The   appellants-accused   Dheeraj  <\/p>\n
Verma   and   Deepak   Verma   were   sentenced   to   undergo   two   years   rigorous  <\/p>\n
imprisonment, for the offence punishable under Section 27 of the Arms Act.  The  <\/p>\n
Sessions   Judge,   Chamba   also   ordered,   that   all   the   substantive   punishments  <\/p>\n
were to run concurrently.\n<\/p>\n<\/p>\n
14.     Dissatisfied with the order rendered in Sessions Trial No.55 of 2003 by the  <\/p>\n
Sessions   Judge,   Chamba   on   30.12.2005,   the   appellants-accused   nos.1   and   2 <\/p>\n
Dheeraj   Verma   and   Deepak   Verma   preferred   Criminal   Appeal   No.27   of   2006  <\/p>\n
before the High Court of Himachal Pradesh.  Criminal Appeal No.27 of 2006 was,  <\/p>\n
however, dismissed by the High Court on 2.9.2009, on merits, as well as, on the <\/p>\n
quantum of sentence imposed on the appellants-accused.<\/p>\n
15.     Dissatisfied   with   the   order   dated   30.12.2005   passed   by   the   Sessions <\/p>\n
Judge,   Chamba   in   Sessions   Trial   No.55   of   2003,   as   well   as,   the   order   dated  <\/p>\n
2.9.2009   passed   by   the   High   Court   of   Himachal   Pradesh   in   Criminal   Appeal  <\/p>\n
                                                  9<\/span><\/p>\n
No.27 of 2006, the appellants-accused nos.1 and 2 Dheeraj Verma and Deepak  <\/p>\n
Verma have approached this Court by filing the instant appeals.<\/p>\n
16.     The  first   and   foremost   contention  advanced  at  the   hands  of  the  learned  <\/p>\n
counsel for the appellants was, that the case set up by the prosecution was false  <\/p>\n
and fabricated.   It was submitted, that the facts brought forth by the prosecution <\/p>\n
clearly  lead  to  the   inference,   that   there  was   no   involvement   whatsoever   of   the <\/p>\n
two accused Dheeraj Verma and Deepak Varma.  In so far as the instant aspect <\/p>\n
of the matter is concerned, it was the contention of the learned counsel for the  <\/p>\n
appellants that the statements of Deepak Kumar PW1, Arun Kumar PW2, Sonia  <\/p>\n
PW3 and Sumitri Devi PW4 reveal, that the two accused were well-known to the <\/p>\n
members   of   the   family   of   the   deceased   Kamini   Verma.     In   this   behalf   it   was  <\/p>\n
sought to be asserted, that according to the prosecution version, the two accused  <\/p>\n
Dheeraj   Verma   and   Deepak   Verma   had   come   to   reside   in   the   house   of   Arun  <\/p>\n
Kumar   PW2   along   with   their   father   Shyam   Lal,   as   tenants.   According   to   the <\/p>\n
learned   counsel,   it   is   also   the   case   of   the   prosecution,   that   Deepak   Verma,  <\/p>\n
appellant-accused  no.2  had been  giving  home tuitions  to the deceased Kamini  <\/p>\n
Verma   and   her   brother   Deepak   Kumar   PW1.     Inspite   of   being   in   an   effective  <\/p>\n
position to identify both the accused on account of their long past relationship, it <\/p>\n
was submitted, that the names of the two accused Dheeraj Verma and Deepak  <\/p>\n
Verma   came   to   be   disclosed,   for   the   first   time   at   13:00   hrs.,   through   the  <\/p>\n
statement of the deceased Kamini Verma, which was recorded by the ASI Jog  <\/p>\n
Raj PW26.  Stated in other words, it is the contention of the learned counsel for  <\/p>\n
the appellants, that even though the two accused were well-known to the entire  <\/p>\n
family   of   the   deceased   Kamini   Verma,   yet   all   the   family   members   of   the  <\/p>\n
                                                    10<\/span><\/p>\n
deceased Kamini Vemra remained tight-lipped till the eventual disclosure of the  <\/p>\n
names   of   the   two   accused   by   Kamini   Verma   herself,   at   the   Zonal   Hospital, <\/p>\n
Chamba.  It is, therefore, the contention of the learned counsel for the appellant,  <\/p>\n
that  the  statements  of  all  the  eye-witnesses   (Deepak  Kumar PW1,  Sonia  PW3 <\/p>\n
and Sumitri Devi PW4) who were close family members of the deceased Kamini <\/p>\n
Verma   and   Rakesh   Kumar,   and   had   known   the   two   accused   for   a   long   time,  <\/p>\n
should   not   be   relied   upon.     It   is   sought   to   be   suggested,   that   all   these   close  <\/p>\n
relations of the deceased Kamini Verma must be deemed to have been tutored,  <\/p>\n
to   make   false   statements   against   the   appellants   Dheeraj   Verma   and   Deepak  <\/p>\n
Verma at the instance of the investigating officers. It is submitted that the crime in  <\/p>\n
question came to be committed at 10:30 hrs., on 28.7.2003, and yet none of the  <\/p>\n
aforesaid eye-witnesses disclosed the names of the offenders.  It is sought to be  <\/p>\n
suggested, that the names would have been disclosed only if they had actually <\/p>\n
witnessed   the   occurrence.   It   is   therefore,   submitted   that   none   of   the   aforesaid  <\/p>\n
eye   witnesses   actually   witnessed   the   occurrence.   It   is,   accordingly,   the <\/p>\n
submission of the learned counsel for the appellant, that the prosecution version  <\/p>\n
deserves to be rejected outright, and the appellants-accused Dheeraj Verma and <\/p>\n
Deepak Verma deserve to be acquitted.\n<\/p>\n<\/p>\n
17.      We have given our thoughtful consideration to the first and the foremost  <\/p>\n
contention advanced at the hands of the learned counsel for the appellants, as <\/p>\n
has been noticed in the foregoing paragraph.  The facts, as they unfold from the  <\/p>\n
prosecution   story   reveal,   that   the   occurrence   took   place   at   10:30   hrs.   on  <\/p>\n
28.7.2003.     Both   Kamini   Verma   and   Rakesh   Kumar   were   taken   to   the   Zonal  <\/p>\n
Hospital,   Chamba   immediately   after   the   occurrence.     Rakesh   Kumar   was <\/p>\n
                                                11<\/span><\/p>\n
declared dead at 12:30 hrs. on the date of occurrence, i.e., on 28.7.2003 itself.  <\/p>\n
The condition of Kamini Verma was critical at that juncture.  This is evident from <\/p>\n
the fact that Dr. D.P. Dogra PW11 gave a report at 12:20 hrs., (on 28.7.2003) to  <\/p>\n
the effect,  that Kamini Verma was not fit to record her statement.  The attending  <\/p>\n
doctor had recorded, that her pulse rate and blood pressure were not recordable.  <\/p>\n
In the peculiar facts, as have been noticed hereinabove, it is evident that the first <\/p>\n
endeavour of all close family members would have been, to have the two injured  <\/p>\n
Kamini Verma and Rakesh Kumar treated at the Zonal Hospital, Chamba. None  <\/p>\n
of the close family members could have been expected to proceed to the police <\/p>\n
station to lodge a report when both the injured were critical.  Full attention for the  <\/p>\n
welfare   of   the   two   close   family   members   would   have   been   the   expected <\/p>\n
behaviour of all family members.   The action to be taken against the assailants, <\/p>\n
would   have   been   a   matter   of   secondary   concern.   The   contention   of   their   not  <\/p>\n
having made any statements at that juncture to the police, cannot therefore, be  <\/p>\n
considered unnatural.  Kamini Verma was declared medically fit at 13:00 hrs., on  <\/p>\n
28.7.2003 by Dr. D.P. Dogra PW11.   She specifically identified the two accused  <\/p>\n
Dheeraj Verma and Deepak Verma as the perpetrators of the occurrence.  There <\/p>\n
is no reason whatsoever to doubt the dying declaration made by Kamini Verma.  <\/p>\n
Besides, the dying declaration of Kamini Verma, the prosecution endeavoured to  <\/p>\n
establish   the   guilt   of   the   accused,   by   producing   three   eye-witnesses.   Deepak  <\/p>\n
Kumar PW1, (aged 14 years at the time of occurrence), who was in the courtyard  <\/p>\n
itself at the time of occurrence was the younger brother of the deceased Kamini <\/p>\n
Verma.  In   his   deposition,  he  reiterated   the  factual   position   recorded  by  Kamini  <\/p>\n
Verma   in   her   dying   declaration.   The   grand-mother   of   the   deceased,   namely,  <\/p>\n
Sumitri   Devi   PW4,   aged   61   years,   is   a   stamped   witness.     At   the   time   of  <\/p>\n
                                                    12<\/span><\/p>\n
occurrence   she   was   hit   by   Dheeraj   Verma,   appellant-accused   no.1,   in   her  <\/p>\n
abdomen, chest and on her right wrist with the butt of his double barrel gun. She  <\/p>\n
also  identified  the  accused  in  her  statement.   On  medical  examination  she was  <\/p>\n
found to have suffered multiple bruises, which  could have  been  caused  by the  <\/p>\n
butt   of   a   double   barrel   gun.   Additionally,   Sonia   PW3   is   also   an   eye-witness  <\/p>\n
whose   statement   was   recorded.     She   was   the   wife   of   the   deceased   Rakesh <\/p>\n
Kumar.  She had come into the courtyard on hearing the first shot fired at Kamini  <\/p>\n
Verma.     The   dying   declaration   of   Kamini   Verma   was   supplemented   by   Sonia <\/p>\n
PW3   as   well.   The   aforesaid   three   witnesses,   a   young   boy,   the   wife   of   the  <\/p>\n
deceased and  an  old grandmother are  natural witness,  whose  presence at  the <\/p>\n
place of occurrence, does not cast any shadow of doubt. The prosecution was  <\/p>\n
able to establish the motive of the appellants-accused in having committed the  <\/p>\n
crime.     In   so   far   as   the   instant   aspect   of   the   matter   is   concerned,   the   alleged  <\/p>\n
motive of declining the marriage proposal of the appellant-accused no.1, at the  <\/p>\n
hands of his elder brother, appellant-accused no.2 Deepak Verma was reiterated <\/p>\n
by   Deepak   Kumar   PW1,   Arun   Kumar   PW2,   Sonia   PW3   as   also   Sumitri   Devi  <\/p>\n
PW4,   as   well   as,   by  Kamini   Verma   in   her   statement   recorded   by  ASI   Jog   Raj  <\/p>\n
PW26. It is only on account of the rejection of the aforesaid marriage proposal  <\/p>\n
that Dheeraj Verma and Deepak Verma, the appellants-accused nos.1 and 2, as  <\/p>\n
an act of retaliation and vengeance, jointly committed the offence in question.  It  <\/p>\n
is   also   necessary   to   notice,   that   no   reason   whatsoever   emerges   from   the <\/p>\n
evidence produced before the Trial Court why the family of the deceased Kamini  <\/p>\n
Verma   and\/or   Rakesh   Kumar   would   falsely   implicate   the   accused-appellants  <\/p>\n
nos.1   and   2.   The   cumulative   effect   of   all   the   factors   mentioned   above,   clearly  <\/p>\n
negate   the   suggestions\/   submissions   advanced   by  the   learned   counsel   for   the  <\/p>\n
                                                   13<\/span><\/p>\n
appellants as a part of his first contention.  It is, therefore, apparent that there is  <\/p>\n
no   merit   in   the   first   contention   advanced   at   the   hands   of   the   counsel   for   the  <\/p>\n
appellants.\n<\/p>\n<\/p>\n
18.     The second contention advanced at the hands of the learned counsel for <\/p>\n
the appellants was limited to the appellant-accused no.2 Deepak Verma.   In so <\/p>\n
far as the second submission is concerned, it was sought to be asserted that no  <\/p>\n
role whatsoever has been attributed to appellant-accused no.2 Deepak Verma.  It  <\/p>\n
was   pointed   out,   that   as   per   the   prosecution   witnesses,   the   double   barrel   gun  <\/p>\n
which  came to  be  fired at  Kamini Verma  and Rakesh  Kumar,  had remained in  <\/p>\n
possession   of   Dheeraj   Verma,   appellant-accused   no.1   throughout   the <\/p>\n
occurrence. All the shots were fired by Dheeraj Verma, appellant-accused no.1. It  <\/p>\n
was   pointed   out,   that   as   per   the   prosecution   story,   it   was   Dheeraj   Verma,  <\/p>\n
appellant-accused no.1 alone, who had allegedly fired shots, in the first instance  <\/p>\n
at Kamini Verma, and thereafter, at Rakesh Kumar. It was submitted, that none  <\/p>\n
of the shots was fired by Deepak Verma appellant-accused no.2. It is submitted, <\/p>\n
that even if the prosecution story is examined dispassionately,  it would emerge  <\/p>\n
that Deepak Verma, accused-appellant no.2 was a mere by-stander, and had no  <\/p>\n
role whatsoever in the commission of the crime in question.  In order to buttress <\/p>\n
the aforesaid contention, learned counsel for the appellants, in the first instance,  <\/p>\n
placed   reliance   on  State   of   Uttar   Pradesh   vs.   Sahrunnisa   &  Anr.<\/a>   (2009)   15 <\/p>\n
SCC 452, wherefrom he placed emphatic reliance on the following observations:<\/p>\n
        “18.     There   can   be   no   dispute   that   these   two   respondents   were  <\/p>\n
        present   and   indeed   their   mere   presence   by   itself   cannot   be   of <\/p>\n
        criminal nature in the sense that by their mere presence a common <\/p>\n
        intention cannot be attributed to them.  Indeed, they have not done  <\/p>\n
        anything.  No overt act is attributed to them though it was tried to be  <\/p>\n
                                               14<\/span><\/p>\n
      claimed by one of the witnesses that when the police party reached  <\/p>\n
      there they were standing on one leg.  This also appears to be a tall <\/p>\n
      claim without any basis and the High Court has rightly not believed  <\/p>\n
      this story which was tried to be introduced.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Additionally, reliance was placed on Aizaz & Others vs. State of Uttar Pradesh <\/p>\n
(2008) 12 SCC 198.  In so far as the instant judgment is concerned, our attention <\/p>\n
was invited to the following observations:\n<\/p>\n<\/p>\n
      “11.    …It is a well-recognised canon of criminal jurisprudence that <\/p>\n
      the courts cannot distinguish between co-conspirators, nor can they <\/p>\n
      inquire, even if it were possible, as to the part taken by each in the <\/p>\n
      crime.     Where   parties   go   with   a   common   purpose   to   execute   a <\/p>\n
      common   object,   each   and   every   person   becomes   responsible   for <\/p>\n
      the   act   of   each   and   every   other   in   execution   and   furtherance   of <\/p>\n
      their common purpose; as the purpose is common, so must be the <\/p>\n
      responsibility.  All are guilty of the principal offence, not of abetment <\/p>\n
      only.  In a combination of this kind a mortal stroke, though given by  <\/p>\n
      one of the parties, is deemed in the eye  of  the  law to  have  been <\/p>\n
      given   by   every   individual   present   and   abetting.     But   a   party   not  <\/p>\n
      cognizant of the intention of his companion to commit murder is not  <\/p>\n
      liable, though he has joined his companion to do an unlawful act.  <\/p>\n
      The leading feature of this section is the element of participation in <\/p>\n
      action.   The essence of liability under this section is the existence  <\/p>\n
      of a common intention animating the offenders and the participation  <\/p>\n
      in   a   criminal   act   in   furtherance   of   the   common   intention.     The  <\/p>\n
      essence   is   simultaneous   consensus   of   the   minds   of   persons <\/p>\n
      participating in the criminal action to bring about a particular result. <\/p>\n
      (See Ramaswami Ayyangar vs. State of T.N. (1976) 3 SCC 779). <\/p>\n
      The participation need not in all cases be by physical presence.  In  <\/p>\n
      offences   involving   physical   violence,   normally   presence   at   the <\/p>\n
      scene   of   offence   may   be   necessary,   but   such   is   not   the   case   in <\/p>\n
      respect of other offences when the offence consists of diverse acts  <\/p>\n
      which   may   be   done   at   different   times   and   places.     The   physical <\/p>\n
      presence   at   the   scene   of   offence   of   the   offender   sought   to   be <\/p>\n
      rendered liable under this section is not one of the conditions of its <\/p>\n
      applicability in every case. Before a man can be held liable for acts  <\/p>\n
      done   by   another,   under   the   provisions   of   this   section,   it   must   be <\/p>\n
      established that: (i) there was common intention in the sense of a <\/p>\n
      prearranged plan between the two, and (ii) the person sought to be <\/p>\n
      so   held   liable   had   participated   in   some   manner   in   the   act  <\/p>\n
      constituting the offence.  Unless common intention and participation <\/p>\n
      are both present, this section cannot apply.\n<\/p><\/blockquote>\n
\n                                         15<\/span><\/p>\n<\/blockquote>\n
12.     `Common   intention’   implies   prearranged   plan   and   acting   in <\/p>\n
concert   pursuant   to   the   prearranged   plan.     Under   this   section   a  <\/p>\n
preconcert in the sense of a distinct previous plan is not necessary  <\/p>\n
to   be   proved.     The   common   intention   to   bring   about   a   particular  <\/p>\n
result   may   well   develop   on   the   spot   as   between   a   number   of  <\/p>\n
persons, with reference to the facts of the case and circumstances  <\/p>\n
of   the   situation.     Though   common   intention   may   develop   on   the  <\/p>\n
spot,   it   must,   however,   be   anterior   in   point   of   time   to   the <\/p>\n
commission   of   offence   showing   a   prearranged   plan   and   prior <\/p>\n
concert.   (See Krishna Govind Patil v. State of Maharashtra<\/a> – AIR  <\/p>\n
1963 SC 1413).   In  Amrik Singh v. State of Punjab [(1972) 4 SCC  <\/p>\n
(N) 42]    it has been held that common intention presupposes prior <\/p>\n
concert.     Care   must   be   taken   not   to   confuse   same   or   similar <\/p>\n
intention   with   common   intention;   the   partition   which   divides   their  <\/p>\n
bonds   is   often   very   thin,   nevertheless   the   distinction   is   real   and <\/p>\n
substantial,   and   if   overlooked   will   result   in   miscarriage   of   justice. <\/p>\n
To   constitute   common   intention,   it   is   necessary   that   intention   of  <\/p>\n
each   one   of   them   be   known   to   the   rest   of   them   and   shared   by <\/p>\n
them.  Undoubtedly, it is a difficult thing to prove even the intention  <\/p>\n
of an individual and, therefore, it is all the more difficult to show the  <\/p>\n
common intention of a group of persons.  But however difficult may <\/p>\n
be   the   task,   the   prosecution   must   lead   evidence   of   facts, <\/p>\n
circumstances   and   conduct   of   the   accused   from   which   their <\/p>\n
common intention can be safely gathered.   In  Maqsoodan v. State  <\/p>\n
of   U.P.   [(1983)   1   SCC   218]  it   was   observed   that   the   prosecution <\/p>\n
must   lead   evidence   from   which   the   common   intention   of   the <\/p>\n
accused can be safely gathered.  In most cases it has to be inferred  <\/p>\n
from the act, conduct or other relevant circumstances of the case in  <\/p>\n
hand.     The   totality   of   the   circumstances   must   be   taken   into  <\/p>\n
consideration in arriving at a conclusion whether the accused had a  <\/p>\n
common   intention   to   commit   an   offence   for   which   they   can   be  <\/p>\n
convicted.     The   facts   and   circumstances   of   cases   vary   and   each  <\/p>\n
case   has   to   be   decided   keeping   in   view   the   facts   involved.  <\/p>\n
Whether   an   act   is   in   furtherance   of   the   common   intention   is   an <\/p>\n
incident of fact and not of law.  In Bhaba Nanda Sarma v. State of  <\/p>\n
Assam<\/a>   [(1977)   4   SCC   396]  it   was   observed   that   the   prosecution <\/p>\n
must  prove  facts   to justify  an inference  that  all  participants  of  the  <\/p>\n
acts   had   shared   a   common   intention   to   commit   the   criminal   act <\/p>\n
which   was   finally   committed   by   one   or   more   of   the   participants. <\/p>\n
Mere presence of a person at the time of commission of an offence  <\/p>\n
by the confederates is not, in itself sufficient to bring his case within  <\/p>\n
the purview of Section 34, unless community of designs is proved <\/p>\n
against   him   (See   Malkhan   Singh   v.   State   of   U.P.<\/a>   (1975)   3   SCC  <\/p>\n
311).     In   the   Oxford   English   Dictionary,   the   word   `furtherance’   is <\/p>\n
defined   as   `action   of   helping   forward’.     Adopting   this   definition, <\/p>\n
Rusell   says   that:   `it   indicates   some   kind   of   aid   or   assistance <\/p>\n
producing   an   effect   in   future’   and   adds   that   any   act   may   be  <\/p>\n
regarded as done in furtherance of the ultimate felony if it is a step <\/p>\n
intentionally   taken,   for   the   purpose   of   `effecting   that   felony’.  <\/p>\n
                                                  16<\/span><\/p>\n
        (Russel on Crime, 12th Edn., Vol.I, pp. 487 and 488).  In Shankarlal  <\/p>\n
        Kacharabhai v. State of Gujarat [AIR 1965 SC 260]  this Court has <\/p>\n
        interpreted the word `furtherance’ as `advancement or promotion.”<\/p>\n
        Based on the observations recorded in the judgments relied upon it was  <\/p>\n
submitted,   that   the   appellant-accused   no.2   Deepak   Verma   had   no   role   in   the <\/p>\n
crime,   except   that   he   was   present   at   the   place   of   occurrence.   It   is   therefore <\/p>\n
submitted, that his mere presence along with Dheeraj Verma accused-appellant <\/p>\n
no.1, cannot be a valid basis for his conviction.\n<\/p>\n<\/p>\n
19.     It is not possible for us to accept the contention advanced at the hands of <\/p>\n
the   learned   counsel   for   the   appellant   to   the   effect,   that   the   appellant-accused <\/p>\n
no.2 Deepak Verma was not an active participant in the crime in question. The  <\/p>\n
evidence produced by the prosecution clearly establishes that the two accused-<\/p>\n
appellants   nos.1   and   2   Dheeraj   Verma   and   Deepak   Verma   had   come   to   the  <\/p>\n
house  of  Arun Kumar  PW2  to commit  the  crime  in  question  on  a  scooter.  It   is  <\/p>\n
also apparent that at one juncture only two cartridges can be loaded in a double  <\/p>\n
barrel   gun.   With   the   cartridges   loaded   in   the   gun,   the   appellant-accused   no.1  <\/p>\n
Dheeraj Verma had fired the first two shots at Kamini Verma.   Thereafter, there  <\/p>\n
were no live cartridges in the gun. Sumitri Devi, while appearing as PW4, pointed  <\/p>\n
out, that after the appellant-accused no.1 Dheeraj Verma had fired two shots at  <\/p>\n
Kamini   Verma,   the   appellant-accused   no.2   Deepak   Verma   provided   two   live <\/p>\n
cartridges   to  the  appellant-accused   no.1   Dheeraj  Verma.     Dheeraj  Verma  then <\/p>\n
reloaded his double barrel gun with the two live cartridges furnished by appellant-<\/p>\n
accused no.2 Deepak Verma, and fired one further shot at the deceased Rakesh <\/p>\n
Kumar.   After the commission of the crime, Dheeraj Verma and Deepak Verma,  <\/p>\n
                                                  17<\/span><\/p>\n
jointly   made   good   their   escape   on   a   scooter   bearing   registration   no.   PB-58-A-<\/p>\n
0285.   When  the  two   accused   were   apprehended   at   Bataluan  Morh   at   a  police <\/p>\n
“naka”   the   appellant-accused   no.2   Deepak   Verma   was   driving   the   scooter,  <\/p>\n
whereas, appellant-accused no.1 Dheeraj Verma was pillion riding with him.   It,  <\/p>\n
accordingly   emerges,   that   after   having   committed   the   crime,   the   appellant-<\/p>\n
accused   no.2   Deepak   Verma,   also   helped   his   brother   appellant-accused   no.1 <\/p>\n
Dheeraj   Verma   to   make   good   his   escape   from   the   place   of   occurrence.     It   is,  <\/p>\n
therefore,   not   possible   for   us   to   conclude   that   appellant-accused   no.2   Deepak  <\/p>\n
Verma   was   merely   a   by-stander,   who   was   incidentally   present   at   the   place   of  <\/p>\n
occurrence.     In   our   considered   view   both   Dheeraj   Verma   and   Deepak   Verma  <\/p>\n
jointly   planned   and   committed   the   crime.     The   judgments   relied   upon   by   the <\/p>\n
learned counsel for appellants are inapplicable to the facts and circumstances of  <\/p>\n
this   case.     Various   eye-witnesses   had   identified   the   two   accused   who   had  <\/p>\n
committed   the   offence.     The   dying   declaration   of   Kamini   Verma   and   the  <\/p>\n
statements   of   her   relations,   who   had   appeared   as   prosecution   witness,   duly  <\/p>\n
establishes the commission of the crime, as well as, the common motive for the <\/p>\n
two accused to had joined hands in committing the crime.   The handing over of  <\/p>\n
two live cartridges by the appellant-accused no.2 Deepak Verma to his brother  <\/p>\n
Dheeraj   Verma,   after   he   had   fired   two   shots   from   the   double   barrel   gun   with  <\/p>\n
which   the   crime   in   question   was   committed,   completely   demolishes   the <\/p>\n
contention advanced at the hands of the learned counsel for the appellants, in so  <\/p>\n
far as the participation of the appellant-accused no.2 Deepak Verma in the crime <\/p>\n
is concerned.   For the reasons recorded herein above, we find no merit even in  <\/p>\n
the second contention advanced at the hands of the counsel for the appellants.<\/p>\n
                                                  18<\/span><\/p>\n
20.     The third contention advanced at the hands of the learned counsel for the  <\/p>\n
appellants was, that there was no motive whatsoever for the appellant-accused  <\/p>\n
no.2   Deepak   Verma   to   have   committed   the   offence   in   question.     It   is   the  <\/p>\n
submission   of   the   learned   counsel   for   the   appellants,   that   insult   on   account   of  <\/p>\n
non acceptance of the  marriage  proposal already referred to above,  may have <\/p>\n
been felt by appellant-accused no.1 Dheeraj Verma.   There was no question of  <\/p>\n
the appellant-accused no.2 Deepak Verma to have felt any insult, or to have any  <\/p>\n
motive to commit the offence in question.  On account of lack of motive to commit  <\/p>\n
the crime on the part of appellant-accused no.2 Deepak Verma, learned counsel  <\/p>\n
emphatically submits, that the appellant-accused no.2 Deepak Verma deserves  <\/p>\n
acquittal.   In order to supplement his instant contention, learned counsel placed <\/p>\n
reliance   on   a   judgment   rendered   by   this   Court   in   State   of   Uttar   Pradesh   v. <\/p>\n
Rajvir, (2007) 15 SCC 545, wherein the State had approached this Court against  <\/p>\n
the acquittal of the respondent.  The High Court, while hearing the appeal against  <\/p>\n
the respondent had re-appreciated the evidence by re-evaluating the statement <\/p>\n
of witnesses.   While two of the accused were found to be guilty of murder, and  <\/p>\n
accordingly,   the  sentence   passed  by  the  Trial  Court   against   them  was   upheld;  <\/p>\n
the High Court was doubtful of the participation of the respondent in the murder <\/p>\n
of the deceased, according to learned counsel, solely on the ground that there  <\/p>\n
was   no   motive   for   the   respondent   to   commit   the   murder   of   the   deceased. <\/p>\n
Adopting a cautious approach, the High Court had acquitted the respondent by <\/p>\n
giving him the benefit of doubt.  This Court found merit in the determination of the  <\/p>\n
High Court, and accordingly, upheld the decision of the High Court by recording <\/p>\n
the following observations:\n<\/p>\n
\n                                               19<\/span><\/p>\n
“8.      We have carefully considered the submissions made by the <\/p>\n
learned   counsel   for   the   parties.     It   is   the   case   of   the   prosecution  <\/p>\n
that   the   other   two   accused,   namely,   Chander   and   Chhotey   had  <\/p>\n
motive   against   the   deceased   and   the   respondent   had   no   motive <\/p>\n
whatsoever   against   the   deceased;   all   the   three   accused   were <\/p>\n
friendly among them.  It is true that PWs 1 to 3 have supported the <\/p>\n
prosecution case that all the three accused went to the house of the  <\/p>\n
deceased on the date of the incident and the respondent called the <\/p>\n
deceased to attend a patient immediately.   PWs 1 to 3 also stated  <\/p>\n
that all the three accused assaulted the deceased but the evidence  <\/p>\n
of   PWs  1   to   3   is   specific   and   consistent   as   to   the   assault   by   the <\/p>\n
accused Chander on the deceased with a knife.   As to the assault  <\/p>\n
by the respondent, the statements of the witnesses are general and  <\/p>\n
vague.  No specific overt act is attributed to the respondent.  It may  <\/p>\n
also be mentioned here that there was no recovery of knife from the  <\/p>\n
respondent.   There   was   recovery   of   bloodstained   clothes   from   the <\/p>\n
accused Chander.   It is possible that on the accused Chander and  <\/p>\n
Chhotey asking the respondent to accompany them to the house of <\/p>\n
the   deceased   to   show   a   patient   or   the   respondent   himself   might  <\/p>\n
have   taken   a   patient   also   for   examination   by   the   doctor.     Mere  <\/p>\n
presence   of   the   respondent   on   the   spot   when   the   incident   took  <\/p>\n
place was not sufficient to hold that the respondent had shared the  <\/p>\n
common   intention   to   kill   the   deceased;   particularly   so   when   the  <\/p>\n
respondent   had   no   motive   whatsoever.     PW1,   the   brother   of   the <\/p>\n
deceased himself has stated that the respondent had no ill-will or <\/p>\n
motive against the deceased.   It is under these circumstances, the <\/p>\n
motive aspect assumed importance.   There is no dispute as to the  <\/p>\n
legal position that in the absence of motive; or the alleged motive  <\/p>\n
having not been established; an accused cannot be convicted if the <\/p>\n
prosecution is (sic not) successful in establishing the crime said to  <\/p>\n
have   been   committed   by   an   accused   by   other   evidence.     At   any  <\/p>\n
rate, a doubt definitely arose in the case in hand as to what was the  <\/p>\n
reason   or   motive   for   the   respondent   to   commit   the   murder   of   the <\/p>\n
deceased.  In State of U.P. v. Hari Prasad<\/a> [(1974) 3 SCC 673] this <\/p>\n
Court dealing with the aspect of motive has stated thus: (SCC pp.  <\/p>\n
674-75, para 2):\n<\/p>\n<\/p>\n
         “This is not to say that even if the witnesses are truthful, the <\/p>\n
         prosecution   must   fail   for   the   reason   that   the   motive   of   the <\/p>\n
         crime   is   difficult   to   find.     For   the   matter   of   fact,   it   is   never  <\/p>\n
         incumbent   on   the   prosecution   to   prove   the   motive   for   the <\/p>\n
         crime.  And often times, a motive is indicated to heighten the  <\/p>\n
         probability   that   the   offence   was   committed   by   the   person <\/p>\n
         who was impelled by the motive.  But, if the crime is alleged <\/p>\n
         to have been committed for a particular motive, it is relevant <\/p>\n
         to   inquire   whether   the   pattern   of   the   crime   fits   in   with   the <\/p>\n
         alleged motive.”\n<\/p><\/blockquote>\n
\n                                                  20<\/span><\/p>\n
        The   present   case   is   not   the   one   where   the   prosecution   has  <\/p>\n
        successfully proved the guilt of the respondent beyond reasonable <\/p>\n
        doubt   by   other   evidence   on   record   to   say   motive   aspect   was <\/p>\n
        immaterial.”<\/p><\/blockquote>\n
        Based on the aforesaid factual and legal position, it is submitted, that the  <\/p>\n
appellant-accused no. 2 Deepak Verma deserved acquittal.<\/p>\n
21.     We  have   examined   the   third   submission   canvassed   at   the   hands   of   the <\/p>\n
learned counsel for the appellants, based on the plea of motive.   While dealing  <\/p>\n
with the second contention, advanced at the hands of the learned counsel for the  <\/p>\n
appellants,   we   have   already   concluded   hereinabove,   that   there   was   sufficient <\/p>\n
motive even for the appellant-accused no.2 Deepak Verma to commit the crime <\/p>\n
in   question,   in   conjunction   with   his   younger   brother   Dheeraj   Verma,   appellant-<\/p>\n
accused no.1.  Be that as it may, it would be relevant to indicate, keeping in mind <\/p>\n
the observations recorded by this Court as have been brought to our notice by <\/p>\n
the learned counsel for  the  appellants (which  we  have  extracted  hereinabove),  <\/p>\n
that proof of motive is not a sine qua non before a person can be held guilty of  <\/p>\n
the commission of a crime. Motive being a matter of the mind, is more often than  <\/p>\n
not,   difficult   to   establish   through   evidence.   In   our   view,   the   instant   contention <\/p>\n
advanced by the learned counsel for the appellant is misconceived in the facts  <\/p>\n
and   circumstances   of   the   case.   In   the   present   case,   there   is   extensive   oral <\/p>\n
evidence in the nature of the statements of three eye-witnesses out of which one  <\/p>\n
                                                     21<\/span><\/p>\n
is a stamped witness, that appellant-accused no.2 Deepak Verma was an active  <\/p>\n
participant in the crime in question. There is also the dying declaration of Kamini  <\/p>\n
Verma   implicating   both   the   accused.     In   the   case   relied   upon   by   the   learned  <\/p>\n
counsel   for   the   appellant,   the   oral   evidence   produced   by   the   prosecution   to  <\/p>\n
implicate   the   respondent   with   the   commission   of   the   crime,   was   not   clear. <\/p>\n
Accordingly,   in   the   absence   of   the   prosecution   having   been   able   to   establish  <\/p>\n
even the motive, the High Court (as well as, this Court) granted the respondent <\/p>\n
the   benefit   of   doubt.     That   is   not   so,   in   so   far   as   the   present   controversy   is  <\/p>\n
concerned.     The   oral   evidence   against   the   appellant-accused   no.2   Deepak  <\/p>\n
Verma   is   clear   and   unambiguous.   Besides,   motive   of   appellant-accused   no.2 <\/p>\n
Deepak   Verma   is   also   fully   established.   We   are   therefore   satisfied,   that   the  <\/p>\n
judgment relied upon by the learned counsel for the appellant has no relevance  <\/p>\n
to   the   present   case.     We,  therefore,   find   no   merit   even   in   the   third   contention  <\/p>\n
advanced at the hands of the learned counsel for the appellants.<\/p>\n
22.      The last contention advanced at the hands of the learned counsel for the  <\/p>\n
appellant   was,   that   the   dying   declaration   of   Kamini   Verma   which   became   the  <\/p>\n
basis of registering the First Information Report itself, was forged and fabricated.  <\/p>\n
Learned   counsel   for   the   appellants,   vehemently   contended   that   the   very  <\/p>\n
foundation   of   the   prosecution   story   itself   being   shrouded   in   suspicious <\/p>\n
circumstances,   must   lead   to   the   inevitable   conclusion,   that   the   appellants-<\/p>\n
accused have been falsely implicated in the crime in question.   In so far as the  <\/p>\n
instant aspect of the matter is concerned, it was the vehement contention of the <\/p>\n
learned   counsel   for   the   appellants,   that   Kamini   Verma   was   declared   medically  <\/p>\n
                                                  22<\/span><\/p>\n
unfit to make a statement by Dr. D.P. Dogra PW11 at 12:20 hrs., on 28.7.2003.  <\/p>\n
Pointing out to Exhibit PW11\/B, it was the submission of the learned counsel for <\/p>\n
the appellants, that the medical report, showing that Kamini Verma was not fit to  <\/p>\n
make a statement, had been made on the ground that her pulse rate and blood  <\/p>\n
pressure were not recordable.   According to the learned counsel, within just 40 <\/p>\n
minutes, the same Dr. D.P. Dogra PW11 gave a report at 13:00 hrs., that Kamini  <\/p>\n
Verma was fit to record her statement.  Learned counsel for the appellants, also <\/p>\n
invited   the   court’s   attention   to   Exhibit   PW11\/C,   PW23\/A   and   PW26\/A   so   as   to  <\/p>\n
point out a number of discrepancies. It was submitted, that there are a number of  <\/p>\n
cuttings\/overwritings, of the time at which the endorsements on dying declaration <\/p>\n
of Kamini Verma were recorded.   It is submitted, that the time has been altered  <\/p>\n
from 12:20 p.m. to 1:00 p.m.  This, according to the learned counsel was done, to  <\/p>\n
match with the time given by Dr. D.P. Dogra PW11.  Pointing to the endorsement  <\/p>\n
of Dr. D.P. Dogra, it was submitted that Dr. D.P. Dogra had endorsed the dying  <\/p>\n
declaration   at   13:00   hrs.   It   was   pointed   out,   that   the   time   of   the   endorsement  <\/p>\n
made by ASI Jog Raj PW26 (under the dying declaration of Kamini Verma) was  <\/p>\n
recorded at 1:30 p.m., which was subsequently altered to 1:00 p.m. to match with  <\/p>\n
the   time   recorded   in   the   endorsement   made   by   Dr.   D.P.   Dogra   PW11. <\/p>\n
Additonally, it was the contention of the learned counsel for the appellants, that  <\/p>\n
the   language   of   the   dying   declaration   itself   shows,   that   the   same   was   not   a <\/p>\n
voluntary  statement  made  by  Kamini  Verma,  but  actually the  handiwork  of ASI  <\/p>\n
Jog Raj PW26, who had recorded the aforesaid statement.  In this regard learned  <\/p>\n
counsel for the appellants pointed out, that various words and observations were  <\/p>\n
used   in   the   dying   declaration,   which   are   in   use   of   police   personnel   (and\/or <\/p>\n
advocates), but not in the use of common persons.  It is, therefore, sought to be  <\/p>\n
                                                  23<\/span><\/p>\n
submitted   that   the   dying   declaration   of   Kamini   Verma,   allegedly   recorded   at  <\/p>\n
13:00 hrs., on 28.7.2003 at Zonal Hospital, Chamba not being her own voluntary  <\/p>\n
statement, was liable to be discarded from the prosecution version.   In case the <\/p>\n
same is ignored, the entire prosecution story,  according to the learned counsel  <\/p>\n
for the appellants, would crumble like a house of cards.\n<\/p>\n<\/p>\n
23.     We   have   considered   the   last   submission   advanced   at   the   hands   of   the <\/p>\n
learned counsel for the appellants.  There can be no doubt that there are certain <\/p>\n
discrepancies in the time recorded in the dying  declaration.   Additionally,   there <\/p>\n
can also be no doubt that certain words which are not in common use have found  <\/p>\n
place in the dying declaration made by Kamini Verma.  Despite the aforesaid, we  <\/p>\n
find no merit in the submission advanced at the hands of the learned counsel for <\/p>\n
the appellant. It is not possible for us to accept, that Kamini Verma was not fit to  <\/p>\n
make her statement when she actually recorded the same in the presence of ASI  <\/p>\n
Jog Raj PW26 and Dr.D.P. Dogra PW11.   The very medical report, relied upon  <\/p>\n
by the learned counsel for the appellants, which depicted that the pulse rate and  <\/p>\n
blood pressure of Kamini Verma was not recordable, also reveals, that on having <\/p>\n
been given treatment her blood pressure improved to 140\/70 and her pulse rate <\/p>\n
improved   to   120   per   minute.   This   aspect   of   the   medical   report   is   not   subject  <\/p>\n
matter of challenge. The fact that the incident occurred on 28.7.2003 and Kamini  <\/p>\n
Verma eventually died on 1.8.2003, i.e., 4 days after the recording of the dying  <\/p>\n
declaration also shows that she could certainly have been fit to make her dying  <\/p>\n
declaration   on   28.7.2003.   Her   fitness   was   actually   recorded   on   the   dying  <\/p>\n
declaration by Dr. D.P. Dogra PW11. A number of prosecution witnesses reveal  <\/p>\n
                                                   24<\/span><\/p>\n
that   she   was   conscious   and   was   able   to   speak.     Kamini   Verma   after   having <\/p>\n
recorded   her   statement   before   ASI   Jog   Raj   PW26,   also   repeated   the   same <\/p>\n
version   of   the   incident   (as   she   had   narrated   while   recording   her   dying <\/p>\n
declaration)   to   her   father   Arun   Kumar   PW2,   when   she   was   being   shifted   from  <\/p>\n
Chamba   to   Amritsar   for   medical   treatment.     Moreover,   Dr.   D.P.   Dogra   PW11 <\/p>\n
appeared as a prosecution witness, and affirmed the veracity of her being in a fit  <\/p>\n
condition  to make  the statement.   There is no  reason  whatsoever  to doubt the  <\/p>\n
statement   of   Dr.   D.P.   Dogra   PW11.     The   question   of   doubting   the   dying  <\/p>\n
declaration   made   by   Kamini   Verma   could   have   arisen   if   there   had   been   other  <\/p>\n
cogent   evidence   to   establish   any   material   discrepancy   therein.     As   already  <\/p>\n
noticed hereinabove, three eye witnesses, namely,  Deepak Kumar PW1, Sonia  <\/p>\n
PW3  and  Sumitri  Devi  PW4  have   supported  the   version  of  the  factual  position <\/p>\n
depicted in the statement of Kamini Verma.  It is, therefore, not possible for us to  <\/p>\n
accept, that the statement of Kamini Verma was either false or fabricated, or that,  <\/p>\n
the statement was manipulated at the hands of the prosecution to establish the  <\/p>\n
guilt of the appellants-accused nos.1 and 2 Dheeraj Verma and Deepak Verma,  <\/p>\n
or   that   she   was   not   medically   fit   to   make   a   statement.   The   discrepancies   in <\/p>\n
recording   time,   as   well   as,   the   overwriting   pointed   out   are   too   trivial   to   brush  <\/p>\n
aside   the   overwhelming   oral   evidence   produced   by   the   prosecution,   details <\/p>\n
whereof have been repeatedly referred to by us, while dealing with  the various  <\/p>\n
submissions   advanced   at   the   hands   of   the   learned   counsel   for   the   appellants.  <\/p>\n
We, therefore, find no merit even in the last contention advanced at the hands of  <\/p>\n
the counsel for the appellants.\n<\/p>\n
\n                                           25<\/span><\/p>\n
24.    In view of the above we hereby affirm the order passed by the Trial Court <\/p>\n
dated 30.12.2005 (in Sessions Trial No.55 of 2003) and also, the order passed  <\/p>\n
by the High Court dated 2.9.2009 (in Criminal Appeal No.27 of 2006). Both the  <\/p>\n
appeals   preferred   by   appellants-accused   nos.1   and   2,   Dheeraj   Verma   and  <\/p>\n
Deepak Verma are, accordingly, dismissed.\n<\/p>\n<\/p>\n
                                                    …………………………….J.\n<\/p>\n
                                                    (R.M. Lodha)<\/p>\n
                                                    …………………………….J.\n<\/p>\n
                                                    (Jagdish Singh Khehar)<\/p>\n
New Delhi<\/p>\n
October 11, 2011<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Deepak Verma vs State Of H.P on 11 October, 2011 Author: J S Khehar Bench: R.M. Lodha, Jagdish Singh Khehar 1 “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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-23093","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDeepak Verma vs State Of H.P on 11 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deepak-verma-vs-state-of-h-p-on-11-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deepak Verma vs State Of H.P on 11 October, 2011 - 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