-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T (1) D.B.CRIMINAL MURDER REFERENCE NO.3/2006 (State of Rajasthan vs. Munna Shah) (2) D.B.CRIMINAL APPEAL NO.607/2006 (Munna Shah Vs. State of Rajasthan) (3) D.B.CRIMINAL JAIL APPEAL NO.608/2006 (Munna Shah Vs. State of Rajasthan) (4) D.B.CRIMINAL APPEAL NO.638/2006 (Munna @ Dilip Vs. State of Rajasthan) (5) D.B.CRIMINAL APPEAL NO.639/2006 (Raju Yadav @ Iqbal Ahemad Vs. State of Rajasthan) (6) D.B.CRIMINAL LEAVE TO APPEAL NO.270/2006 (State of Rajasthan Vs. Kalu Ram @ Kalu Lal) Date of Judgment: October 19th, 2006 P R E S E N T HON'BLE MR.JUSTICE N.N.MATHUR HON'BLE MR.JUSTICE R.P.VYAS REPORTABLE/- Mr.J.P.S.Choudhary,Public Prosecutor Mr.G.M.Khan, Mr.M.S.Chouhan, Mr.A.K.Sindhi, Mr.A.R.Malkani, Mr.Sakir Ali, Mr.Sikander Khan, Mr.Sahadat Ali, Mr.Mridul Jain, Smt.Anuradha Jain, Mr.R.S.Chouhan, Mr.Anuj Sahlot, Mr.K.C.Sharma, Mr.B.S.Rathore, Mr.K.S.Chouhan for respective appellants/party Mr.Ramesh Purohit, for the complainant -2- BY THE COURT : (PER HON'BLE MR.MATHUR J.) 1. The instant murder reference for confirmation of death sentence and batch of appeals arises out of a tragic incident as a result of conspiracy for robbery. The appellants A-1 Munna Shah S/o Mubarak Shah resident of Ziraniya, State of Madhya Pradesh, A-2 Raju Yadav @ Iqbal S/o Sultan Ahmed Kureshi resident of Sahapur (M.P.), A-3 Munna @ Dilip S/o Mangilal resident of Sahapur(M.P.) and Kalu Ram @ Kalu Lal were sent up for trial on charge of robbery and murder before the court of Additional Sessions Judge (Fast Track), Pratapgarh. The learned Judge by the impugned judgment dated 21st June, 2006 having found the appellant A-1 Munna Shah guilty of offence under Section 302 I.P.C. condemned to death. He has also been convicted and sentenced for cognate offences. The appellant A-2 Raju Yadav @ Iqbal and A-3 Munna @ Dilip have been convicted of offence under Section 302/120-B I.P.C. and each of them sentenced to imprisonment for life and to pay a fine of Rs.1000/-; in default of payment to further undergo one year's rigorous imprisonment. They have also been convicted and sentenced for the cognate offences. The learned -3- Additional Sessions Judge has made the statutory reference under Section 366(1) of the Code of Criminal Procedure for the confirmation of death sentence. While all the three appellants A-1 Munna Shah, A-2 Raju Yadav @ Iqbal and A-3 Munna @ Dilip have preferred appeal against their conviction, the State has preferred an appeal against part of the judgment acquitting accused respondent Kalu Ram @ Kalu Lal. 2. The factual score as emerged during the trial is that appellant A-3 Munna @ Dilip resident of Sahapur was married at Pratapgarh the place of occurrence. A-2 Raju Yadav @ Iqbal is also resident of Sahapur, State of Madhya Pradesh. They are said to be friends. A-3 Munna @ Dilip settled in Pratapgarh. He used to sell vegetables on a Thela on the Bus Stand of the Town. Kalu Ram is also a vegetable seller running a Thela at the Bus Stand. A-2 Raju Yadav @ Iqbal was arrested in connection with a theft case. He was detained in Jail at Pratapgarh. He came in contact with A-3 Munna alias Dilip. A-1 Munna Shah was also known to A-2 Raju Yadav @ Iqbal. It was in the knowledge of both the vegetable sellers that Petrol Pump owners used to visit Bank for depositing the huge amount. Thus, the accused -4- persons hatched a plan of committing the robbery. A-1 Munna Shah assured for arranging the necessary weapons like pistol. A-1 Munna Shah and A-2 Raju Yadav @ Iqbal arrived at Pratapgarh on 7.10.2003. It is alleged that they stayed in Room No.1 of Ambika Hotel during the period 7.10.2003 to 15.10.2003. A-3 Munna @ Dilip and Kalu Ram @ Kalu Lal were regular visitors. They also used to talk secretly. It is further alleged that they used to keep watch on the persons of the Petrol Pump visiting the Bank for depositing the amount. The Branch of the Rajasthan Bank is situated on the First Floor of the building on the Bus Stand in Pratapgarh Town. 3. On 15.10.2003 at about 10.15 A.M. P.W.1 Rakesh left the Petrol Pump on a Scooter carrying an amount of Rs.8,46,850/- in a Bag. He parked the Scooter in front of the Bank. He reached on the First Floor and passed through the channel gate. Abruptly a person arrived from back and asked him to release the bag of currency notes. When he turned round the said person pointed pistol at him. He became panicky but refused to pass on the Bag, on which he fired pistol, hitting on his chest and snatched away the bag. He ran down with the bag -5- and boarded the awaiting Motor-Cycle parked on the road in motion mode with another miscreant occupying the driving seat. The third miscreant was standing nearby. He also came down. The gun shot fire and his cries attracted the employees and others on the sport. The miscreant with bag in hand shouted, asking the third miscreant calling by name “Dilip” to run away, on job being accomplished. One labourer namely Mahesh, standing nearby nabbed the miscreant (who had fired) and threw him on the ground. Meanwhile the other two miscreants speed up motor-cycle and ran away. The miscreant, who had fallen on the ground soon stood up and fired at Mahesh and took his heels towards Krishi Upaj Mandi with the bag of currency notes in hand. Mahesh fell down. P.W.13 Mukesh, P.W.20 Tej Singh took Rakesh to the hospital on the scooter. The police received a telephonic information, after making entry in the Rojnamcha at 10.22 A.M. rushed to the spot. The police flashed the news of the incident on wireless to all concern and arranged blockade on all roads providing way to move out of Town. P.W.27 Vikram Singh, S.H.O., Police Station, Pratapgarh went to the hospital and recorded the statement of Rakesh Paliwal. On the basis of the Parcha -6- Bayan Ex.P1, Police registered a F.I.R. For offence under Sections 307, 397, 398, 302, 120-B I.P.C. and 3/25 of the Arms Act. The police inspected the site and recovered the incriminating articles particularly empty cartridge and bullet. The appellant A-1 Munna Shah was arrested red handed with pistol and the bag of currency notes. On inspection of the pistol a burnt and a live cartridge was found, which were separately sealed and packed. Mahesh Gwala collapsed on the spot. His body was sent for post-mortem. Police also seized the Visitors Register from the Ambika Hotel. The motor vehicle used in the crime found abandoned was also seized. On the same day the appellant Kalu Lal was also arrested. From his possession the clothes of the appellant Munna Shah were recovered. A police team was dispatched to State of Madhya Pradesh for the arrest of two other accused persons i.e. Raju Yadav @ Iqbal and Munna @ Dilip. P.W.15 Bheru Singh A.S.I. arrested appellants Raju Yadav @ Iqbal and Munna @ Dilip vide Ex.P16 and Ex.P17 respectively from village Sahapur, State of Madhya Pradesh on 22.10.2003. Both of them were brought to Pratapgarh. On 3.11.2003 the identification parade was arranged. Police also recovered currency notes from the possession of Raju -7- Yadav @ Iqbal. After usual investigation police laid charge-sheet against the appellants for offence under Sections 120-B, 397, 398, 307 & 302 I.P.C. read with Section 3/25 of the Arms Act. The appellants denied the charges levelled against them and claimed trial. The prosecution in support of the case produced oral and documentary evidence. The appellants in their statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them and pleaded innocence. The trial culminated in conviction of the appellants by the impugned judgment as indicated above. The accused appellant Kalu Ram @ Kalu Lal was acquitted of the charge. 4. It is not in dispute that Mahesh Gwala died of homicidal death. P.W.5 Dr.Manmal Sankhla was one of the member of the Medical Board, which conducted autopsy on the dead body of deceased Mahesh Gwala and noticed the following ante mortem injuries vide post-mortem report Ex.P13:- Gun shot wound of entry of size 5 cm x 2 cm present on left side of forehead with charring of surrounding tissue and hair scorched with bone punctured out & brain matter coming out through the wound. -8- In opinion of the Medical Board the cause of death was due to coma as a result of Neurogenic shock due to gun shot injury. 5. P.W.5 Dr.Manmal Sanklha has also examined the injuries on the person of P.W.1 Rakesh vide Report Ex.P/4 noticing the following injury:- Lacerated wound with charring of surroundings of 3 x 2 x 2 cm bone deep with bleeding. 6. We have heard the learned Public Mr.J.P.S.Choudhary assisted by the counsel for the complainant Mr.Ramesh Purohit in support of the murder reference. We have also heard Mr.G.M.Khan learned counsel for appellant Munna Shah, Mr.B.S.Rathore learned counsel for appellant Raju Yadav @ Iqbal and Mr.Mridul Jain learned counsel for appellant Munna @ Dilip. We have also perused the record carefully. It is submitted that the trial court has committed error in convicting the appellants for offence of conspiracy under Section 120-B I.P.C. According to the learned counsel for the parties the finding with respect to conspiracy is based on surmises and -9- conjectures. There is no evidence worth the name that the alleged incident is outcome of the conspiracy. As regards the main incident it is submitted that the entire case rests on the evidence of identification. Except Munna Shah none of the witnesses have identified the appellant Raju Yadav @ Iqbal in the test identification parade. As far as Munna @ Dilip is concerned, he was not put to identification. The conviction of the appellants on the basis of the court identification is not sustainable. On the other hand, it is submitted by the learned Public Prosecutor that there are reasonable grounds to believe the existence of conspiracy between the accused persons of committing the robbery and murder. The finding recorded by the trial court is based on sound reasons, which warrants no interference. The learned Public Prosecutor has supported the judgment of the trial court and murder reference. 7. Before we avert to the rival contentions, it would be convenient to briefly survey the oral evidence produced by the prosecution. P.W.1 Rakesh is the partner of M/s Purshottamlal Rameshchandra firm running a petrol pump at Pratapgarh. He deposed that on the date of occurrence he arrived at the Rajasthan -10- Bank situated on the Bus Stand of Pratapgarh for depositing an amount of Rs.8,46,850/-. He carried the currency notes in a bag. He parked the Scooter and entered in the Bank Building. On reaching First Floor, some body from behind asked him to hand over the bag of currency notes to him. He identified the said person as appellant Munna Shah. On his refusal to part with the bag, Munna Shah fired at him, hitting on the chest. He snatched the bag, rushed down and boarded the awaiting Motor Cycle parked on the road in motion mode with other miscreant on the driving seat, identified as Raju Yadav alias Iqbal. Munna Shah shouted at third miscreant calling by name “Dilip” to run away on job being accomplished. However, a labour named Mahesh standing nearby, swoop on him and threw on the ground. Appellant Munna Shah quickly got up and fired the pistol, hitting deceased Mahesh, on account of which he fell down. Both the miscreants i.e. Raju alias Iqbal and Munna alias Dilip, speed up the Motorcycle and disappeared. Munna Shah pointing pistol at the mob ran towards the Krishi Upaj Mandi. Number of people had collected on the place of incident, which included employees of the Bank, Vidhya Sagar Rathore, Ishwarlal etc. The police recorded his statement vide -11- Ex.P1 while he was in hospital. 8. P.W.12 Champaji deposed that at the time of occurrence he was on his shop near Archna Talkies. He witnessed mob chasing a person carrying bag and pistol in hand. The man was rounded up and handed over to the police. The police prepared necessary memos in his presence. 9. P.W.13 Mukesh deposed that P.W.1 Rakesh was known to him. On the date of occurrence he had seen Rakesh proceeding towards the Rajasthan Bank with a bag in hand. He heard of a gun shot fire. He witnessed the person carrying revolver in his hand. He was also carrying a bag. He heard of Rakesh Paliwal shouting. A motorcycle was parked in motion mode on the road. The man with revolver and bag in hand occupied the seat on the motorcycle. Mahesh Gwala grabbed and threw him on the road. However, he got up and fired the pistol hitting Mahesh on the head. He shouted at one of the person standing naming Dilip and asked him to went off as the job has been accomplished. Dilip and the other person drove out on the motorcycle. The person with the bag in hand and pistol ran towards the Krishi Upaj -12- Mandi. The mob chased him. He along with others took Rakesh to the hospital and soon returned to the Bus Stand. The police had arrived on the spot. He is Motbir of the different police memos. He identified the appellant Munna Shah present in the court as a person carrying the bag and fired at Mahesh. He also identified the appellant Iqbal as the person, occupying the driving seat of the motorcycle. 10. P.W.18 Ishwarlal runs a STD shop in front of Archna Talkies. He deposed that P.W.1 Rakesh Paliwal was known to him. On the date of occurrence at about 10 A.M. When he reached near the Bank, he heard of gun fire. One person came out of the Bank with a pistol and bag in hand. He was followed by Rakesh Paliwal. His hand was on the chest and shouting that he was being shot. He was also shouting to the effect that a miscreant, after snatching his bag full of currency notes has escaped. He also witnessed a motorcycle parked outside the Bank in motion mode. He further deposed that when person with pistol and bag in hand tried to occupy the motorcycle, Mahesh Gwala nabbed him and threw on the road. He soon got up and fired the pistol hitting the head of Mahesh. The person on the -13- motorcycle asked his companion calling him by name as Dilip to move fast as the job has been accomplished. Both the persons went off on the motorcycle. Mahesh fell down and collapsed. The miscreant ran towards Krishi Upaj Mandi with bag and pistol in hand. Rakesh Paliwal was taken to the hospital by Mukesh on the scooter. One Teju also accompanied him. The police reached on the spot. He identified the appellant Munna Shah as the person running with the pistol and bag in the hand. He also identified the appellant Iqbal as the person sitting on the motorcycle. He also identified Munna @ Dilip. He also stated that he had identified the appellant Munna Shah in the identification parade. P.W.20 Tej Singh has not supported the prosecution case, as such he was declared hostile. 11. P.W.14 Prabhulal is the Proprietor of Petrol Pump M/s Purshottamlal and Rameshchandra. He had the Bank account of the Firm with Rajasthan Bank on Krishi Upaj Mandi Road near Archna Talkies. On 15.10.2003 at about 10 A.M. his younger brother P.W.1 Rakesh Paliwal carried Rs.8,46,850/- for depositing the same in the Bank. After about 10 minutes he received an information on telephone that some miscreant causing -14- injuries to Rakesh has taken away the bag. Rakesh was taken to the hospital. He rushed to the hospital. P.W.1 Rakesh narrated the entire incident to him. 12. P.W.16 Gopal Singh at the relevant time was Manager of Ambika Hotel at Pratapgarh. He deposed that on 6.9.2003 Raju Yadav and Munna Shah arrived at the hotel. They made entries in the visitors' register. They stayed in the hotel during period 7.10.2003 to 15.10.2003. Kalu Lal Gujar and Dilip were the regular visitors. Both of them visited the hotel in the evening of 14.10.2003 and inquired about Munna Shah and Raju Yadav. Both of them went to Room No.1, where Munna Shah and Raju Yadav were staying. He overheard talking them about a petrol pump. On 15.10.2003 Raju Yadav and Munna Shah left the hotel at about 9.30 A.M. He heard about robbery and murder in front of Rajasthan Bank. Raju Yadav and Munna Shah did not return to the hotel. He also stated that he identified the accused persons in the identification parade. He also stated that the Visitors Register was seized by the police. In the cross examination, he admitted that Kalu Gujar used to regularly bring vegetables to Hotel Ambika. He had also seen Dilip in the market selling -15- vegetables on a Thela. 13. P.W.19 Kailash was Waiter at the relevant time in Hotel Ambika. He deposed that Munna Shah and Raju Yadav had lodged in Ambika Hotel Room No.1 for about a week. He used to supply them breakfast, tea, water etc. in the room. A day before the date of occurrence Kalu and Dilip had come to meet Munna Shah and Raju Yadav at about 7.30 P.M. Munna Shah and Raju Yadav left the hotel on the date of occurrence at about 9.30 A.M. He had heard about the firing outside the Bank. Munna Shah and Raju Yadav did not return to the hotel after the said incident. He identified all the four accused persons in the court. 14. P.W.25 Ashok Kumar Tak was posted as Judicial Magistrate Pratapgarh at the relevant time. He deposed that in his presence the identification parade was held vide Ex.P7. He also deposed that he conducted the identification parade following all the precautions in accordance with law. 15. P.W.7 Vasudeo is the Photographer. P.W.8 Manoj deposed that he has done the videography of the place -16- of occurrence. P.W.17 Yam Subrahmanyam Sharma deposed that at the relevant time he was Executive Manager in B.T.S. Cellcom Ltd. The police approached to him with a Mobile bearing No.98226271154. The police wanted to get the details of all the calls of the said Mobile. He took out the details from the computer for the period 1.7.2003 to 16.10.2003. The details were given vide Ex.P62, P63, & P64. P.W.23 Gopesh Bhatt deposed that on the request of the police he had given the print out of the details of the Mobile. 16. P.W.9 Babu Lal is a formal police witness. P.W.11 Ram Singh and P.W.22 Dinesh Chandra are the police witnesses of the link evidence. P.W.24 Mithu Singh is the Armour. He deposed that he has examined the country made pistol recovered by the police. P.W.26 Shri Krishna Devendra Singh is the Sub Inspector at the Police Station, Pratapgarh. He deposed that on a report being brought by P.W.9 Babu Lal he registered the case. P.W.15 Bheru Singh is A.s.I. He has given the details of the arrest of the accused Munna @ Dilip and Raju Yadav @ Iqbal. P.W.27 Vikram Singh is the Investigating Officer. He has given the details of the investigation. P.W.2 Keshar Singh, P.w.3 Mohd.Rafiq, P.W.4 Dinesh, -17- P.W.10 Oonkar Lal are the formal witnesses of different police memos. 17. The defence has also examined three witnesses D.W.1 Mahesh Saxena, D.W.2 Afjal Ahmed Kureshi and D.W.3 Waqtawar. D.W.1 Mahesh Saxena deposed that appellant Dilip was known to him as he had married at Pratapgarh. He used to sell vegetables on a Thela like him. He left his house on 15.10.2003 and thereafter he was not seen. He came to know from News Papers namely Dainik Bhaskar and Nav Bharat that Dilip was involved in a shooting and robbery case. The photographs of the miscreants, which included Dilip had appeared in the News Papaers. 18. D.W.2 Afjal Ahmed Kureshi is the brother of appellant Iqbal. He has given the details of the family. His father retired from government service as Librarian. He had done his M.A. in Political Science. He gave details of all the brothers and sisters to show that the appellant Raju alias Iqbal belonged to a cultured and educated family. As regards appellant Iqbal he stated that while he was students of Second Year he left the studies. He also stated that Iqbal has no other bye- name like Raju Yadav. He has produced the school -18- certificate to show that his name is Iqbal. He also stated that on 15.10.2003 the appellant Iqbal was at his residence. D.W.3 Waqtawar deposed that no recovery was made in his presence in pursuance of the information given by appellant Kalu Ram. 19. While narrating the prosecution case, we have noticed inter se relationship of all the four accused persons. To put in capsule Raju Yadav @ Iqbal and Munna @ Dilip are the close friends being the resident of the same locality in Village Sahapur in State of Madhya Pradesh. Munna @ Dilip after marriage settled in Pratapgarh as a Fruit Seller. Kalu Gujar is also a Fruit Seller. Both of them were in know of the fact that huge sum is brought from Petrol Pump for depositing in the Bank. Raju Yadav @ Iqbal and Munna @ Dilip were arrested in connection with a theft case which refresh their alliance. They also came in contact with Munna Shah. A-1 Munna Shah along with A-2 Iqbal arrived at Pratapgarh and lodged in Ambika Hotel. Iqbal in order to conceal his identity introduced himself as Raju Yadav. An entry was made in the Visitors Register with such name. With the help of local people like Munna @ Dilip and Kalu they hatched a plan to commit robbery -19- and in event of resistance to kill such person for which A-1 Munna Shah carried country made pistol with him. 20. It is of course true that there is no direct evidence of conspiracy but it has to be borne in mind that a conspiracy from its very nature is generally hatched in secret as such it is extremely rare that direct evidence in proof of conspiracy can be brought but like other offences criminal conspiracy can be proved by circumstantial evidence. The Apex Court in Noor Mohammad Mohd.Yusuf Momin vs. The State of Maharashtra reported in AIR 1971 SC 885 noticing the difficulties of collecting evidence of conspiracy laid down that once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offence committed pursuant thereto . 21. In Noor Mohammad's case(supra) Dua J. pointed out the border areas of Section34, Section 109 and Section 120-B I.P.C. as follows:- -20- “So far as S.34, Indian Penal Code is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application.” Dealing with Section 109, Indian Penal Code the Court observed, “Section 109, Indian Penal Code on the other hand may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission.” Turning to Section 120-B I.P.C. the Court observed, “Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, an illegal act or an act which