Ram Nath Madhoprasad And Ors. vs State Of Madhya Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 January, 1953

Coram: Mahajan, Ghulam Hasan

In this matter the Court recorded that the appeals were filed by Ramnath, Pratap and Purshotham under Article 134 (1) (c) of the Constitution of India against the judgment and order dated 22-August-1952 of the High Court of Judicature at Nagpur in Criminal Appeal No 74 of 1951. The facts concerning the incident were set out in detail. Sunder, who worked as a goldsmith and who was the leader of one of the two rival factions in the town of Gadarwara in Madhya Pradesh, was shot while he was returning from a meeting at the grain market and walking on the main cement road of the town. The shooting occurred at a spot in front of the house of a person named Narayandas, where the lane of Phullu Mithya meets that road, at about eleven o’clock or eleven-thirty p.m. on 6-April-1950. The night was described as dark and cloudy and the road was not illuminated by any street lights. After being wounded, Sunder was placed in a tonga and taken to a hospital. According to the report of Mulchand, identified as PW 20 and described as Sunder’s muneem, the first-information report was lodged at the Gadarwara police station at approximately eleven-forty-five p.m. About half an hour later, G. D. Mukherji, PW 5, a first-class magistrate, recorded Sunder’s dying declaration, which was entered as Exhibit P-17. In that statement Sunder answered a series of questions, first identifying the assailants as Purshotham, Pratap, Mamaji and Hanna Ahir, stating that they had shot him with a pistol, and then describing the circumstances of the attack, his movements and his prior hostility with those individuals. Following the dressing of his wounds, Shri S. S. Naidu, PW 49, the Assistant Medical Officer, conveyed him by passenger train to Jubbulpore for admission to the Victoria Hospital. There, Shri Chari, PW 52, the Civil Surgeon, performed an operation on 7-April-1950, but Sunder died on the same day. The post-mortem examination disclosed two distinct wounds on the left side of the mid-auxiliary line, both caused by firearm projectiles. The three appellants together with two other persons, Hari Shankar and Chiddi, were subsequently tried before the Additional Sessions Judge at Narsimhapur, Madhya Pradesh, as being responsible for Sunder’s murder. The charge sheet named Ramnath, Pratap, Purshotham, Hari Shankar and Chiddi under Section 120-B of the Indian Penal Code for having entered into a criminal conspiracy at Gadarwara to murder Sunder. In addition, Ramnath was charged under Section 302 of the IPC for having, in furtherance of that conspiracy, murdered Sunder by shooting him with a pistol. Pratap and Purshotham were charged under Section 302 read with Section 34 of the IPC for having acted in concert with Ramnath in the murder. An alternative charge under Section 302 read with Sections 109 and 114 of the IPC for abetment of the murder by Ramnath was also framed against Pratap and Purshotham. Harnarain, also known as Hanna, was given a pardon and was presented as the first witness for the prosecution.

The trial court also framed an alternative charge against the remaining accused, namely Sections 109 and 114 of the Indian Penal Code for abetting the murder committed by Ramnath. The individual identified as Harnarain, also known as Hanna, received a pardon and consequently testified as the first prosecution witness. After evaluating the evidence, the learned additional sessions judge concluded that the prosecution had failed to establish the charge of criminal conspiracy under Section 120-B of the Indian Penal Code; therefore, all the accused were acquitted of that particular allegation. The judge found Ramnath personally guilty of the homicide of Sunder and convicted him under Section 302 of the Indian Penal Code, imposing the death penalty. In contrast, Pratap and Purshotham were each found guilty under Section 302 read with Section 34 of the Indian Penal Code, and both were sentenced to transportation for life. The other two accused, Harishankar and Chiddi, were acquitted of all charges. The convicted persons and the sentenced individuals appealed their convictions and sentences before the High Court of Judicature at Nagpur, while the State of Madhya Pradesh filed a separate petition seeking to enhance the sentence imposed on Pratap from transportation for life to death. The High Court, in its appellate judgment, altered Ramnath’s conviction from a sole charge under Section 302 to a conviction under Section 302 read with Section 34, consequently reducing his punishment to transportation for life. The appellate court affirmed the convictions of Pratap and Purshotham under Section 302 read with Section 34 and upheld their life-transportation sentences. The State’s request for enhancement of Pratap’s sentence was rejected. The prosecution’s case, which relied entirely on the testimony of the approver, proceeded as follows: In the town of Gadarwara, where both the deceased and the accused resided, two rival factions existed—one led by Sunder and the other by Pratap. Since 1948, these groups had been embroiled in intermittent disputes, leading to criminal proceedings under Section 107 of the Criminal Procedure Code against both factions in 1949; those proceedings were eventually dropped after a settlement was reached. The settlement was short-lived, however, and within a few weeks the parties resumed hostilities, during which members exchanged verbal abuse and physical blows. New security proceedings were instituted in March 1950; while several members of Sunder’s faction were bound over, Sunder himself, his brother Munde, and two others were discharged. At the same time, proceedings against Purshotham, Pratap and Pratap’s brother Durga were still pending when Sunder was shot dead on 6 April 1950. The accused Ramnath did not belong to either faction and had not participated in the Section 107 proceedings of 1949 or 1950. Nevertheless, it was alleged that in 1948 Hari Shankar, the grandson of Ramnath’s sister, suffered a beating at the hands of Sunder or Sunder’s associate Ramrattan, a public worker, and that later, during a gambling dispute, Sunder struck Ramnath with a shoe, prompting Ramnath to threaten that Sunder would be killed. In 1949 Sunder received three anonymous letters, which were handed over to the police. The approver Hanna, who served as a milkman in Gadarwara and also sold pan and bidi, originally belonged to Sunder’s faction and had himself been bound over under Section 107 in March 1950.

Hanna, who had previously been a member of Sunder’s faction, had been bound over under Section 107 in March 1950. Approximately a fortnight before the murder, he demanded two rupees from Sunder’s brother Munde for the supply of pan and bidi; Munde refused to pay and insulted him. Aggrieved by this episode, Hanna resolved to leave Sunder’s party and to join the opposite faction led by Pratap and Purshotham. As a new recruit he began to take an active part in the meetings of that faction, some of which were held at Pratap’s hotel and the last two at Purshotham’s residence. During these gatherings the conspirators decided to kill Sunder, and they resolved that Sunder should be taken behind the ganj and killed there without delay. Pratap consented to go to the ganj where Sunder was attending a meeting in order to call him, and he was followed by the other three conspirators. Pratap later reported to them that Sunder had told him that he would see him on the following morning. Ramnath then hired Chiddi’s tonga and, together with his companions, proceeded to a spot on the main road where Sunder was expected to pass on his way home from the meeting. They entered a lane; after a few minutes Pratap stepped out to urinate and to watch for Sunder’s arrival, noting that Sunder was on his way and was flashing a torch intermittently. Shortly thereafter Ramnath and Purshotham emerged from the lane while Hanna and Pratap remained inside, and Ramnath fired two shots at close range at Sunder. Sunder flashed his torch and fell. Ramnath discharged a third shot before he and his companions fled the scene. Residents of nearby houses, hearing Sunder’s cries, came to the spot and heard Sunder cursing the same persons whom he believed to be his assailants. The prosecution sought to establish a charge of conspiracy under Section 120-B based on the direct testimony of the approver Hanna (PW 1) and Shibbu (PW 8), together with other circumstantial evidence. The learned sessions judge held that the alleged express and sustained criminal conspiracy was not proved; the approver’s testimony was rejected as worthless because he gave varying versions on material particulars of the incident on different occasions. Shibbu was held to be an outright accomplice like Hanna, the difference being that Hanna was a pardoned accomplice while Shibbu was not. The judge further held that there was no independent corroboration, even in the circumstantial evidence, that the alleged criminal conspiracy existed. The State Government did not file an appeal against the acquittal of the appellants on the charge under Section 120-B, and consequently that charge was deemed to have failed. While dealing with the approver’s evidence, the High Court observed that it was difficult to discard the whole of the

The High Court observed that, although it examined the approver’s testimony, it did not go on to record any positive finding regarding any portion of that testimony that it considered trustworthy. In paragraph 49 of its judgment the High Court set out its conclusions in the following terms: “Our conclusions are, shortly stated, that the material on record showed that Sunder was shot by a member of the group which consisted of the appellants and Hanna but that it did not definitely show that Ramnath was the firer, although it was probable that he was, because of his experience in the use of a firearm and his expressed desire to have his enemy Sunder shot. His conviction under Section 302 alone of the I.P.C. cannot in the circumstances be sustained; and the appellants’ learned counsel contended that as the other appellants and he were acquitted under Section 120-B, they could not now be convicted under Section 302 read with Section 34. This argument was based on the hypothesis that the acquittal under Section 120-B connoted the applicability of Section 34, because the facts which resulted in the acquittal under Section 120-B were the same as those which would render resort to Section 34 unwarranted. This contention, was, as adumbrated, one which would have been readily met, if an appeal against the appellants’ acquittal under Section 120-B had been, as it should have been, filed by the State. We say so, because the case was undoubtedly one in which there had been a conspiracy of the character contemplated by Sub-section (1) of Section 120-B, I.P.C.” Despite the acquittal of the appellants under Section 120-B, the High Court proceeded, on the basis of Section 34, to convict them and thereby removed the benefit of the earlier acquittal. The High Court, however, did not accept the evidence that Ramnath was the person who fired the shots that caused injuries to Sunder.

In the present reasoning, it is noted that the approver’s evidence and the evidence of Shibbu, P.W. 8, were both rejected; consequently there was no justification for the High Court’s conclusion that the case undeniably involved a conspiracy contemplated by Sub-section (1) of Section 120-B, particularly when the State had not filed an appeal against the acquittal order. No portion of the dying declarations supported that conclusion, and the charge of criminal conspiracy must therefore be taken as finally negatived by the judgment of the learned Sessions Judge. The prosecution, in turn, produced three witnesses to establish that Ramnath fired the pistol shots that struck Sunder and ultimately caused his death. The first witness on this point was Hanna, P.W. 1, whose testimony had already been rejected by the courts below. The remaining two witnesses were Nanha, P.W. 2, and Ramswarup, P.W. 4.

Nanha was the father of the approver Hanna. The learned sessions judge found that both Nanha and Ramswarup had witnessed the shooting. Although Ramswarup was unable to identify either the assailant or his companion, the judge saw no justification for disbelieving Nanha when Nanha asserted that he could identify Ramnath as the person who actually fired the shots that struck Sunder. The judge also observed that the statements of Nanja and Ramswarup that the assailant had shot Sunder from the front were inaccurate, concluding that the two witnesses had confused the relative positions of Sunder and the assailant at the moment the gun was discharged. Relying on this testimony, the sessions judge concluded that Ramnath was indeed the individual who shot Sunder and that Pratap, Purshotham and Hanna were his companions. The judge further placed reliance on the dying declaration that implicated the appellants. Consequently, Ramnath was convicted under Section 302 of the Indian Penal Code, while the other appellants were convicted under Section 302 read with Section 34 of the same code.

On appeal, the High Court rejected the evidence of both Nanha and Ramswarup in its entirety. The court held that even the limited portion of Nanha’s testimony that the trial judge had accepted was not trustworthy, observing that the testimony had been introduced solely to show that Ramnath had fired the shots and that Nanha’s description appeared to be a product of his imagination. Regarding Ramswarup, the High Court found his evidence equally unsatisfactory. Although he had, in his examination-in-chief, affirmed that he saw Ramnath shooting Sunder from the front with a pistol and that Purshotham stood behind him, he later admitted in cross-examination that he could not recognise those two appellants at the time. Moreover, the firing was not, as Ramswarup had claimed, frontal. With the evidence of both witnesses discredited, the High Court concluded that the record contained no material capable of proving that Ramnath was the person who fired the shots that hit Sunder.

The sole remaining piece of evidence against the appellants was the dying declaration of Sunder, recorded by the magistrate at about 12-15 a.m. on 7-4-1950 in the hospital. The High Court relied upon this declaration and found the appellants guilty under Section 302 read with Section 34 of the Indian Penal Code, sentencing them to life transportation. The State counsel acknowledged that the convictions rested only on the dying declarations made by the deceased on different occasions and conceded that if those declarations were found unreliable, or if it were unsafe to convict solely on their basis, the High Court’s decision could not be sustained and would have to be set aside. Counsel for the appellants, Dr. Tek Chand, strongly argued that the dying declarations on which the High Court relied were not only unreliable but also untrue, rendering the convictions unsafe.

The appellant’s counsel contended that the dying declarations relied upon by the High Court were not only unreliable but actually false, rendering it unsafe to sustain the convictions on the basis of those statements alone. The Court noted that established jurisprudence holds that a conviction cannot rest solely on a dying declaration without independent corroboration, because such a statement is not made under oath, is not subject to cross-examination, and may be given by a person who is mentally or physically disoriented and possibly resorting to imagination.

Accordingly, the Court indicated that each of the dying declarations attributed to the deceased had to be examined in this light. The prosecution called P.W. 3, Narbada Prasad, and P.W. 7, Narayandas, to testify about what they heard the deceased utter shortly after he had been shot. Narbada Prasad narrated his observations in the following words: “I rose from my bed and peeped outside from the window. I saw a man sitting on the road in front of Narayandas Soni’s house and then he lay down on the road and uttered something. He uttered Pratap, Purshotham and he uttered one more name which I could not catch and Mamaji ‘Ki bittia chud gai mar dala bachao’ ……….” The Court observed that this exclamation did not assign blame to any specific individual nor did it constitute a statement that the deceased had actually seen anyone firing at him. It was possible, the Court explained, that the sudden night-time shooting caused Sunder’s immediate reaction to be an instinctive curse against his perceived enemies, expressing that they had succeeded in taking revenge.

The testimony of Narayandas, identified as P.W. 7, was then considered. He stated: “I rose and sat on my bed from where I could see the road below. I saw that Sunder was standing on the road about 3-4 feet towards its middle from the opposite edge of the road with a hand kept on his belly. I had sat on my bed and seen Sunder standing on the road just after Sunder had uttered ‘Bachao bachao baimano ne mar dala’. After uttering the abusive words and the words ‘Bachao bachao’ I saw Sunder sit down on the road and later lie down.” The Court held that this account was likewise neutral and offered no assistance in identifying any perpetrator; it merely reflected the deceased’s claim that “dishonest people” had killed him. Consequently, the evidence of these two witnesses was deemed of little probative value.

The Court then turned to the evidence of three additional witnesses – Munde (P.W. 11), Phakire (P.W. 31) and Hajari (P.W. 32) – who were alleged to have heard a statement from the deceased when they assisted him and escorted him to the hospital by tonga. Munde, who was the brother of the deceased, recounted his question to Sunder: “On reaching Sunder I asked him what happened to him, and where…”

The witness identified as Munde, who is the brother of the deceased, testified that when he reached Sunder he asked him where he had gone. Sunder replied that he was returning after a meeting at Nakalganj and that he had been treacherously shot by a person referred to as “Mama.” When Munde further asked who else was with “Mama,” Sunder answered that the accused persons Purshotham, Pratap and Hanna were also present with “Mama.” During cross-examination Munde admitted that he had earlier made a similar statement to the police, which is recorded as Exhibit D-20-B. In that earlier police statement he had indicated that Sunder named four persons as having shot at him, but he had not mentioned any allegation that Ramnath personally fired the shots. The court therefore observed that Munde’s testimony during trial was an improvement on his original statement. The second witness, Phakire (identified as PW 31), declared that Sunder had seized him with one hand, told him he was killed, and specifically named Mamaji, Pratap, Purushotham and Hanna as the persons who had shot him with a bullet. Phakire’s testimony did not contain any reference to a torch being in Sunder’s hand or at the scene. The third witness, Hajari (identified as PW 32), recounted that Munde asked Sunder who had hit him, and Sunder answered that “Mama Betichoud Dogla” had shot him with a bullet, further naming Mama, Pratap, Purushotham and Hanna as being present together at the shooting. In cross-examination Hajari also admitted that he had given a statement to the police, recorded as Exhibit D-39, and conceded that in that earlier statement he had not recorded any specific accusation that Ramnath fired at Sunder. The learned Sessions Judge held that because each of these witnesses had altered or “improved” their statements compared with their earlier declarations, their evidence could not be considered reliable. The High Court, however, did not refer to these witness statements at all and failed to consider the oral dying declaration of the deceased in forming its conclusion. In the present opinion the Court expressed that unless the exact words spoken by a deceased person are known with certainty, reliance cannot be placed on verbal statements of witnesses or on oral dying declarations made by the deceased.

A further dying declaration is alleged to have been made by the deceased to his mourner Mulchand, identified as PW 20. According to Mulchand, the deceased said: “I thus came to the hospital. Sunder was lying in the verandah of the hospital surrounded by a number of persons. He had injuries on his chest, abdomen and on the buttock and was bleeding from the injuries. His clothes were blood-stained with blood from his injuries. He was however in his senses. I asked him what happened. He said that Pratap, Purushotham, Mamaji and Hanna had ‘jointly shot him with pistol.’” The testimony of Umashankar, identified as PW 30, also dealt with this declaration, and the learned Sessions Judge accepted the declaration as evidence. The Court noted that the declaration was corroborated by the first information report (FIR) filed by Mulchand with the police on the same night. In that FIR, after the words “Same is correctly recorded,” a post-script was added stating: “Sunder had stated on seeing, by means of a torch that all the four individuals were seen.” Dr. Tek Chand contested the authenticity of this sentence, arguing that it was a later interpolation introduced into the FIR. The Court recorded this contention but did not adjudicate on it at this stage.

The Court observed that there was no satisfactory evidence showing that Sunder possessed a torch at the moment when he was shot. The alleged torch was neither discovered at the scene nor presented to the police on either the sixth night or the seventh morning of the incident. It was only on the tenth day that Munde handed the torch to the police, claiming that it had been given to him by an unidentified person who was not produced as a witness. Dr. Tek Chand contended that the episode occurred at approximately 11:30 p.m. on a dark and cloudy night. He further argued that the sudden nature of the firing made it unlikely that Sunder could accurately identify his attackers, especially because the shots were not fired from the front. The learned counsel maintained that the torch story had been introduced solely to suggest that Sunder possessed a means of recognizing his assailants on the dark night. Although the learned sessions judge had relied on Mulchand’s testimony, the High Court did not ascribe significant value to that evidence in view of the dying declaration recorded by the magistrate. As previously noted, the magistrate recorded a dying declaration at the hospital at 12-15 a.m., and the High Court placed considerable reliance on that declaration. After hearing Dr. Tek Chand for the appellants and Mr. Mehta for the State Government, the Court concluded that, given the sudden firing at that hour of the night, Sunder could not have clearly identified the persons who discharged the shots. The Court further observed that, in all probability, the names recited by Sunder at the time were the product of his immediate emotional reaction rather than a factual identification. He appeared to believe that his assailants were his arch-enemies, cursed them, and exclaimed that they had succeeded in finishing him. The dying declaration relied upon by the High Court and recorded by the magistrate on 7th April at 12-15 a.m. did not, in the Court’s view, present a truthful account of the events. According to the Court, the statement reflected what Sunder imagined had occurred rather than what actually transpired in his mind. When first questioned, the magistrate asked Sunder, “Who assaulted you?”, to which Sunder replied, “Purshotham, Pratap, Mamaji and Hanna Ahir shot me by means of a pistol”. The Court found it difficult to conceive how four individuals could fire upon him using a single pistol. It also questioned how Sunder could have actually seen the persons who discharged the shots with that single weapon. The magistrate’s evidence, according to the Court, explicitly referred to ‘a pistol’ as the weapon employed by the four persons mentioned by Sunder. Mr. Mehta for the State Government attempted to argue that Sunder’s statement actually meant that each of the four individuals possessed a pistol and that four separate shots had been fired from four different pistols.

It was held that the contention that each of the four persons named by Sunder possessed a pistol and therefore fired separate shots could not be accepted, because the injuries suffered by Sunder were inconsistent with that theory and contradicted the prosecution’s case as presented in court. The statement was considered vague, reflecting Sunder’s inability to actually identify the individual who had fired; he merely presumed that only those four persons could have been responsible and consequently expressed his belief in an imprecise manner. The second question posed to Sunder asked where he was heading, to which he replied that Pratap had called him, taken him to Nakalganj and struck him there in front of the chudiwala. This response implied that the appellant Pratap had escorted him to Nakalganj and assaulted him at the location where the incident occurred, a version wholly at odds with the narrative advanced by the prosecution. The High Court had suggested that Sunder might have erred in answering this question, but no justification was found for such a suggestion; in a dying declaration, the exact words of the deceased are of crucial importance, and a hypothesis that the deceased spoke mistakenly cannot be entertained. When asked who was present, Sunder answered that he had flashed a torch and saw the four individuals standing, apparently to demonstrate that he had actually seen his assailants. However, this answer was not persuasive given the surrounding circumstances, because five or six persons were around Sunder while he responded, and his statements appeared to be influenced by the declarations and advice of those persons. The Court concluded that the High Court erred in relying heavily on this uncorroborated, vague dying declaration, which did not represent the whole truth. Moreover, the submission of Dr. Tek Chand that the High Court was wrong to hold that Section 34 of the Code was attracted to the facts was deemed well founded, as there was no evidence of any pre-meditation or pre-arranged plan among the assailants. The High Court’s findings appeared to be based on conjecture rather than admissible material, and no act or conduct of the accused could be shown from which an inference of a common intent to murder Sunder could be drawn, even if it were established that all the appellants were present at the spot at the time of the shooting.

The mere fact that the accused were present at the spot at the time the shot was fired could not, by itself, establish a common intention among them to murder Sunder. It is possible that the four individuals were standing together and that one of them, upon suddenly seeing Sunder, discharged his weapon. No evidence on the record has been produced that would eliminate or disprove this possibility, or otherwise show that the shot could not have been fired by another person present. Because the identity of the person who delivered the fatal shot remains unknown, none of the individuals can be held liable for murder under Section 302 of the Indian Penal Code. The Court observed that the High Court had not appreciated the correct effect of the Privy Council decision in Mahbub Shah v. Emperor, AIR 1945 PC 118 (A), concerning the application of Section 34 of the Indian Penal Code. Consequently, the Court concluded that the earlier finding based on Section 34 of the Indian Penal Code must be set aside in the present case. Furthermore, the Court noted that the evidence regarding a conspiracy under Section 120-B of the Indian Penal Code had been rejected. Since that evidence was rejected, it could not be used to sustain a finding of common intention under Section 34. Therefore, there is no satisfactory evidence that positively establishes the three appellants as responsible for Sunder’s murder, even though it is conceivable they were involved. At most, the evidence leaves the matter in doubt, and the appellants are therefore entitled to the benefit of that doubt. Accordingly, the Court allowed all the appeals, set aside the convictions of the appellants, and ordered their acquittal.