DEEPAK VERMAversusSTATE OF HIMACHAL PRADESH

                   [2011] 14 (ADDL.) S.C.R. 270


A                        DEEPAK VERMA
                                  v.
                STATE OF HIMACHAL PRADESH
            . (CRIMINAL APPEAL N0.2423 OF 2009)

                        OCTOBER 11, 2011
B
      [R.M. LODHA AND JAGDISH SINGH KHEHAR, JJ.]

        Penal Code, 1860:

c       ss.302 and 323 rlw s.27 of Arms Act- Conviction of two
  accused under, for causing death of two persons by gun shot
  injuries - Allegation that offence was committed on account
  of retaliation and vengeance - Accused no. 1 fired shots at
  the first victim from his double barrel gun - Thereafter,
D accused no. 2 handed over cartridges to accused no. 1 who
  reloaded his gun - When second victim came to save the first
  victim, accused no. 1 shot at him - Conviction by courts below
  - On appeal, held: Prosecution established that it was only
  on account of the rejection of marriage proposal of accused
E no. 1 by the first victim's father that the accused nos. 1 and 2,
  as an act ofretaliation and vengeance, jointly committed the
  offence - Discrepancies in recording time, as well as the
  overwriting in the dying declaration were too trivial to brush
  aside the overwhelming oral evidence produced by the
  prosecution - Dying declaration of the victim and the
F statements of her relations, who had appeared as prosecution
  witness, duly established the commission of the offence, as
  well as, the common motive for the two accused to have joined
  hands in committing the crime - Conviction upheld.

G       ss.302 and 323 r/w s.27 of Arms Act- Conviction of two
    accused under, for causing death of two persons - Plea of
    accused no.2 that no role whatsoever was attributed to him -
    Held: Evidence on record showed that the two accused had
    come together on a scooter to commit the offence - Accused
H                                270
      DEEPAK VERMA v. STATE OF HIMACHAL                      271
                  PRADESH
 no. 1 fired first two shots at the victim from his double barrel   A
 gun - Thereafter, there were no live cartridges in the gun and
it was accused no.2 who provided two live cartridges to the
 accused no. 1 - After commission of the crime, both accused
jointly made escape on a scooter - Therefore, it cannot be
 held that accused no.2 was merely a bystander and was              B
 incidentally present at the place of occurrence - He was
rightly convicted.

     Evidence:

     Delay in lodging FIF' - Effect on prosecution case - Plea      C
that all the family members of deceased did not make any
statement to police until the eventual disclosure of the.names
of the two accused by deceased herself in her dying
declaration - Held: It is not expected that the close family
members would proceed to police station to lodge a report           D
when the injured are in critical condition - Full attention for
the welfare of the two close family members is the expected
behaviour of all family members - Therefore, delay in lodging
complaint could not be considered fatal to the prosecution
case.                                                               E
     Motive - Held: Proof of motive is not a sine qua non
before a person can be held guilty of the commission of a
crime - Motive being a matter of the mind, is more often than
not, difficult to establish through evidence.
                                                                    F
     The prosecution case was that the father of the
appellants-accused no.1 and 2 was tenant in the house
of PW-2. Accused no.2 was giving home tuitions to the
children of PW-2. One and half years prior to the incident,
the appellant-accused no.2 had approached PW-2 with                 G
the marriage proposal of daughter of PW-2 'KV' with his
brother the appellant-accused no.1. PW-2 did not accept
the proposal. Thereafter 'KV' was married and staying in
a different city. On the day of incident, 'KV' had come to
her father's ho.use to stay. At 10.30, the appellants-              H
    272   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A accused no.1 and 2 went to the hou~e of PW-2 on a
  scooter. Appellant-accused no.1 had in his possession
  a double barrel gun. When 'KV' came in the courtyard,
  appellant-accused no.1 fired two shot at 'KV' from his
  double barrel gun which hit her on her abdomen and
B shoulder. PW-4, grandmother of 'KV' came to the
  courtyard and tried to catch the two accused. Appellant-
  accused no.1 hit PW-4 in her abdomen, chest and on her
  wrist with the butt of the gun. After the two shots were
  fired by appellant-accused no.1, appellant-accused no.2
c handed over two cartridges to appellant-accused no.1
  who reloaded his gun and shot at 'RK' maternal uncle of
  'KV' who had come to the courtyard and trying to lift 'KV'.
  Thereafter the two accused fled away. PW-3, wife of 'RK'
  on hearing the first shot had also rushed to the courtyard.
0 Both the injured were taken to hospital. 'RK' was declared
  dead on the same day. The doctor, PW-11 gave a report
  at 12.20 that 'KV' was not fit to make her statement since
  her pulse rate and blood pressure, at that time was not
  recordable and also she had no control over her speech.
E Subsequently at 13.00, PW-11 declared her medically fit.
  Thereafter, the statement of 'KV' was recorded by ASI PW-
  26. The similar statement was made by her to PW-2 on
  way when she was shifted to another hospital. She died
  after 4 days.

F      On the day of occurrence, the two accused were
  apprehended at the police naka. A double barrel gun with
  one live cartridge and one spent cartridge were
  recovered from their possession. Based on disclosure
  statement of appellant-accused no.1, 13 more live
G cartridges besides four empty cartridge were recovered
  from his house.

      The trial court convicted the appellants-accused no.1
  and 2 under Sections 302 and 323 r/w Section 34, IPC and
H Section 27 of Arms Act. The High Court afrirmed the order
      DEEPAK VERMA v. STATE OF HIMACHAL                    273
                  PRADESH
of conviction.                                                    A
     In the instant appeal, it was contended for the
appellants that the case set, up by the prosecution was
false and fabricated; that even though the two accused
were well known to the family of the deceased, yet all the        8
family of members of the deceased remained quiet till the
statement made by 'KV' involving them in the incident;
that the incident occurred at 10.30 a.m. and yet none of
the eye-witnesses disclosed the names of the offenders.

    The appellant-accused no.2 pleaded that no role               C
whatsoever was attributed to him and that even as per
the prosecution, all the shots were fired by appellant-
accused no.1 and the double barrel gun remained in his
possession and, therefore, appellant-accused no.2 was
a mere by-stander and had no role in the crime; that there        D
was no motive whatsoever for appellant-accused no.2 to
have committed the offence in question.
     Dismissing the appeal, the Court

      HELD: 1. The occurrence took place at 10:30 hrs. on         E
28.7.2003. Both the victim-deceased 'KV' .and the paternal
uncle of the deceased 'RK' were taken to the hospital
immediately after the occurrence. The uncle was declared
dead at 12:30 hrs. on the date of occurrence itself. The
condition of 'KV' was critical at that juncture. This is          F
evident from the fact that the doctor PW11 gave a report
at 12:20 hrs., (on 28.7.2003) to the effect, that 'KV' was not
fit to record her statement. The attending doctor had
recorded, that her pulse rate and blood pressure were not
recordable. In the peculiar facts, it is evident that the first   G
endeavour of all close family members would have been
to have the two injured treated. None of the close family
members could have been expected to proceed to the
police station to lodge a report when both the injured
were critical. Full attention for the welfare of the two close    H
   274    SUPREME COURT REPORTS [2011] 14 (ADDL.)' S.C.R.


A family members would have been the expected behaviour
  of all family members. The action to be taken against the
  assailants would have been a matter of secondary
  concern. The contention of their not having made any
  statements at that juncture to the police, cannot therefore,
B be considered unnatural. 'KV' was declared medically fit
  at 13:00 hrs., on 28.7.2003 by PW11. She specifically
  identified the two accused appellant no.1 and 2 as the
  perpetrators of the occurrence. There is no reason
  whatsoever to doubt the dying declaration made by 'KV'.
c Besides, the dying declaration of 'KV' the prosecution
  endeavoured to establish the guilt of the accused, by
  producing three eye-witnesses. PW1, (aged 14 years at
  the time of occurrence), who was in the courtyard itself
  at the time of occurrence was the younger brother of the
  deceased 'KV'. In his deposition, he reiterated the factual
0
  position recorded by 'KV' in her dying declaration. The
  grand-mother of the deceased PW4, aged 61 years, was
  a stamped witness. At the time of occurrence she was hit
  by appellant-accused no.1, in her abdomen, chest and on
E her right wrist with the butt of his double barrel gun. She
  also identified the accused in her statement. On medical
  examination, she was found to have suffered multiple
  bruises, which could have been caused by the butt of a
  double barrel gun. Additionally, PW3 was also an eye-
  witness whose statement was recorded. She was the
F wife of the deceased 'RK'. She had come into the
  courtyard on hearing the first shot fired at 'KV. The dying
  declaration of 'KV' was supplemented by PW3 as well.
  The said three witnesses, a young boy, the wife of the
  deceased and an old grandmother were natural witness,
G whose presence at the place of occurrence, did not cast
  any shadow of doubt. The prosecution was able to
  establish the motive of the appellants-accused in having
  committed the crime. In so far as the instant aspect of the
  matter is concerned, the alleged motive of declining the
H marriage proposal of the appellant-accused no.1, at the
      DEEPAK VERMA v. STATE OF HIMACHAL                   275
                 PRADESH
 hand·s of his elder brother, appellant-accused no.2 was         A
.reiterated by PW1, PW2, PW3 as also PW4, as well as, by
 'KV' in her statement recorded by ASI PW-26. It is only
 on account of the rejection of the said marriage proposal
 that and appellants-accused nos.1 and 2, as an act of
 retaliation and vengeance, jointly committed the offence        B
 in question. No reason whatsoever emerges from the
 evidence produced before the trial court why the family
 of the deceased 'KV' and/or 'RK' would falsely implicate
 the accused-appellants nos.1 and 2. The cumulative
 effect of all the factors clearly negate the first contention   C
 raised on behalf of the appellants. [Para 17] [286-G-H; 287-
 A-H; 288-A-F]

       2. It is not possible to accept the contention that the
-appellant-accused no.2 was not an active participant in
·the crime in question. The evidence produced by the D
1prosecution clearly established that the two accused-
.appellants nos.1 and 2 had come to the house of PW2
•on a scooter to commit the crime in question. It is also
•apparent that at one juncture only two cartridges can be
!loaded in a double barrel gun. With the cartridges loaded E
lin the gun, the appellant-accused no.1 had fired the first
ltwo shots at 'KV'. Thereafter, there were no live cartridges
On the gun. PW4 pointed out, that after the appellant-
eccused no.1 had fired two shots at 'KV', the appellant-
e ccused no.2 provided two live cartridges to. the F
appellant-accused no.1. Accused no.1 then reloaded his -
-:louble barrel gun with the two live cartridges furnished
->y appellant-accused no.2 and fired one further shot at
111he deceased 'RK'. After the commission of the crime, the
-wo accused jointly made good their escape on a scooter. G
-'Vhen the two accused were apprehended at police
  'naka" the appellant-accused no.2 was driving the
•cooter, whereas, appellant-accused no.1 was pillion
  'iding with him. It, accordingly emerged that after having
-:ommitted the crime, the appellant-accused no.2 also H
    276   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A helped his brother appellant-accused no.1 to make good
    his escape from the place of occurrence. It is, therefore,
    not possible to conclude that appellant-accused no.2
    was merely a by-stander, who was incidentally present
    at the place of occurrence. Both the accused jointly
8 planned and committed the crime. Various eye-witnesses
  · had identified the two accused who had committed the
    offence. The dying declaration of 'KV' and the statements
    of her relations, who had appeared as prosecution
    witness, duly established the commission of the crime,
C as well as, the common motive for the two accused to
    had joined hands in committing the crime. The handing
    over of two live cartridges by the appellant-acclised no.2
    to his brother accused no.1, after he had fired two shots
   from the double barrel gun with which the crime in
   question was committed, completely demolished the
D contention, in so far as the participation of the appellant-
   accused no.2 in the crime was concerned. [Para 19) [292-
   G-H; 293-A-H; 294-A-B]

       State of Uttar Pradesh vs. Sahrunnisa & Anr. (2009) 15
E SCC 452: 2009 (10) SCR 237; Aizaz & Others vs. State of
  Uttar Pradesh (2008) 12 SCC 198: 2008 (12) SCR 13 - held
  inapplicable.

       3. Proof of motive is not a sine qua non before a
  person can be held guilty of the commission of a crime.
F Motive being a matter of the mind, is more often than not,
  difficult to establish through evidence. In the instant case,
  there was extensive oral evidence in the nature of the
  statements of three eye-witnesses out of which one was
  a stamped witness, that appellant-accused no.2 was an
G active participant in the crime in question. There is also
  the dying declaration of 'KV' implicating both the
  accused. The oral. evidence against the appellant-
  accused no.2 was clear and unambiguous. Besides,
  motive of appellant-accused no.2 was also fully
H established. [Para 21] [297-B-F]
      DEEPAK VERMA v. STATE OF HIMACHAL                 277
                  PRADESH
    State of Uttar Pradesh v. Rajvir (2007) 15 SCC 545 -       A
held inapplicable.

      4. There can be no doubt that there were certain
discrepancies in the time recorded in the dying
declaration. Additionally, there can also be no doubt that     8
certain words which are not in common use have found
place in the dying declaration made by 'KV'. Despite that
it is not possible to accept that 'KV' was not fit to make
her statement when she actually recorded the same in the
presence of ASI PW26 and the doctor PW11. The very             C
medical report, relied upon by the appellants, which
depicted that the pulse rate and blood pressure of 'KV'
was not recordable, also revealed, that on having been
given treatment her blood pressure improved to 140/70
and her pulse rate improved to 120 per minute. This
aspect of the medical report was not subject matter of         D
challenge. The fact that the incident occurred on
28.7.2003 and 'KV' eventually died on 1.8.2003, i.e., 4 days
after the recording of the dying declaration also showed
that she could certainly have bee"! fit to make her dying
declaration on 28.7.2003. Her fitness was actually             E
recorded on the dying declaration by PW11. A number of
prosecution witnesses revealed that she was conscious
and was able to speak. 'KV' after having recorded her
statement before ASI PW26, also repeated the same
version of the incident (as she had narrated while             F
recording her dying declaration) to her father PW2, when
she was being shifted from Chamba to Amritsar for
medical treatment. Moreover, the doctor PW11 appeared
as a prosecution witness, and affirmed the veracity of her
being in a fit condition to make the statement. There is       G
no reason whatsoever to doubt the statement of PW11.
The question of doubting the dying declaration made by
'KV' could have arisen if there had been other cogent
evidence to establish any material discrepancy therein.
Three eye witnesses PW1, PW3 and PW4 supported the             H
     278     SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.


A version of the factual position depicted in the statement
   of 'KV'. It is, therefore, not possible to accept, that the
  statement of 'KV' was either false or fabricated, or that,
  the statement was manipulated at the hands of the
  prosecution to establish the guilt of the appellants-
B accused nos.1 and 2 or that she was not medically fit to
  make a statement. The discrepancies in recording time,
  as well as, the overwriting pointed out were too trivial to
  brush aside the overwhelming oral evidence produced by
  the prosecution. The order passed by the trial court and
c also, the order passed by the High Court are affirmed.
  [Paras 23, 24] [299-C-H; 300-A-E]

                         Case Law Reference:
           2009 (10) SCR 237     held inapplicable   Para 18
D          2008 (12) SCR 13      held inapplicable   Para 18
           (2007) 15 SCC 545 held inapplicable       Para 20

      CRIMINAL APPELLAT'f JURISDICTION: Criminal Appeal
E No. 2423 of 2009.

         From the Judgment and Order dated 02.09.2009 of the
    Division Bench of the High Court of Himanchal Pradesh at
    Shimla in Criminal Appeal No. 27 of 2006.
                                WITH
F                       -
    Criminal Appeal No. 157 of 2010.

        R.N. Mittal, Arvind Kumar Gupta, Rahul Mangla and Mohit
    Garg for the Appellant.

G       Naresh K. Sharma for the Respondent.

        The Judgment of the Court was delivered by

        JAGDISH SINGH KHEHAR, J. f. These appeals have
    been preferred by Dheeraj Verma (original accused no.1) and
H
     DEEPAK VERMA v. STATE OF HIMACHAL                    279
     PRADESH [JAGDISH SINGH KHEHAR, J.]
Deepak Verma {original accused no.2) so as to assail the         A
osder of conviction and sentence dated 30.12.2005 rendered
in Sessions Trial no.55 of 2003 by the Sessions Judge,
Chamba, as also, the decision rendered by the Himachal
Pradesh High. Court in Criminal Appeal No.27 of 2006,
whereby, the conviction and sentence awarded by the Sessions     B
Judge, Chamba, on 30.12.2005, came to be upheld on
2.9.2009.

     2. The prosecution, in order to bring home the case
against the appellants-accused examined as many as 27
witnesses. The prosecution story, as is emerged from the         C
statements of the witnesses, produced by the prosecution,
reveals· that Kamini Verma alias Doli resided with her father
Arun Kumar PW2 in Mohalla Sultanpur, Chamba, in the State
of Himachal Pradesh. Kamini Verma was married to Anmol
Verma alias Munna on 6.2.2003. Thereafter, she had been          D
residing along with her husband at Mukerian in the State of
Punjab. On 28.7.2003, Kamini Verma came fo her father's
house in Chamba from Pathankot. She had arrived at 05:30
hrs. She had been escorted to her father's house by Rakesh
Verma {her paternal uncle, i.e., younger brother of her father   E
Arun Kumar, PW2), and his wife Veera.

     3. About a year before the marriage of Kamini Verma with .
Anmol Verma, Deepak Verma, appellant-accused no.2 had
approached Arun Kumar PW2 {father of Kamini Verma) with F
a marriage proposal for· Kamini Verma, with his younger
brother Dheeraj Verma appellant-accused no.1. Kamini
Verma's father, Arun Kumar did not accept the proposal.
Thereafter, Kamini Verma was married to Anmol Verma on
6.2.2003. Earlier, Dheeraj Verma and Deepak Verma, were G
tenants in the house of Arun Kumar (PW2, father of Kamini
Verma). The two accused were originally residents of
Gurdaspur in the State of Punjab: The father of the accused,
namely, Shyam Lal, a goldsmith, had moved to Chamba in the
State of Himachal Pradesh, and had started to reside in the H
    280 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.

A house of Arun Kumar PW2. Shyam Lal has reportedly now gone
  back to the State of Punjab. The affinity between the family of
  Arun Kumar (PW2, father of Kamini Verma) and Shyam Lal
  (father of appellants-accused Dheeraj Verma and Deepak
  Vernia) was also based on the fact, that Deepak Verma,
B appellant-accused no.2, had been giving home tuitions to
  Kamini Verma and her brother Deepak Kumar (PW1).

         4. Kamini Verma reached Chamba from Pathankot on
   28.7.2003 at about 05:30 hrs. Dheeraj Verma, appellant-
   accused no.1 and Deepak Verma, appellant-accused no.2
C came to the house of Arun Kumar (PW2, father of Kamini
   Verma) at Mohalla Sultanpur, Chamba at about 10:30 hrs. They
   had come on a scooter. Dheeraj Verma, appellant-accused
   no.1, had in his possession, a double barrel gun. Aqcording to
   the case of the prosecution, after taking breakfast, Kamini
D Verma went to the kitchen to clean utensils. Having cleaned the
   utensils she came out into the courtyard. As she stepped into
   the courtyard, Dheeraj Verma, appellant-accused no.1 fired one
   shot at her from his double barrel gun. This shot hit her in the
   abdomen. Dheeraj Verma, appellant-accused no.1, then fired
E another shot at Kamini Verma. The second shot hit her on the
   left shoulder. Sumitri Devi (PW4, grandmother of Kamini
  Verma) who had also come into the courtyard, tried to catch
  the two accused who were making good their escape. Dheeraj
  Verma, appellant-accused no.1 hit Sumitri Devi PW4 in her
F abdomen, che~t and on her right wrist, with the butt of his double
  barrel gun. Later, when she was medically examined (on
  3.8.2003), she was found to have suffered multiple bruises, but
  the nature of injuries was found to be simple. Even though,
  Sumitri Devi PW4 had picked up a stone and had thrown it at
G the appellant-accused no.1, but she had missed her mark.
      5. According to the prosecution story, after two shots had
  been fired by Dheeraj Verma, appellant-accused no.1, Deepak
  Verma, appellant-accused no.2 handed over two cartridges to
H Dheeraj Verma, appellant-accused no.1. The appellant-
      DEEPAK VERMA v. STATE OF HIMACHAL                       281
      PRADESH [JAGDISH SINGH KHEHAR, J.]

accused no.1 then reloaded his gun and shot at Rakesh Kumar          A
(maternal uncle of Kamini Verma) who had by then come into
the courtyard, and was trying to lift Kamini Verma. The shot fired
at Rakesh Kumar (maternal uncle of Kamini Verma) hit him on
the left side of the lower abdomen. The two accused then fled
away. At the time of occurrence, Sonia (PW3, wife of Rakesh          B
Kumar, maternal uncle of Kamini Verma) on hearing the first
shot had also rushed to the courtyard. She tried to assist her
husband Rakesh Kumar and her niece Kamini Verma.

     6. Both Kamini Verma and Rakesh Kumar were taken to
the Zonal Hospital, Chamba immediately after the occurrence.         C
Rakesh Kumar was declared dead at the said Hospital at
12:30 hours on the date of the occurrence itself (i.e., on
28.7.2003). He was stated to have died due to a gun shot injury
causing rupture of major vessels and visceral organs leading
to hemorrhagic shock and death.                                      D

     7. The police post, Sultanpur was informed of the
occurrence telephonically, "feading to the recording of Daily
Diary No.4 at 10:30 a.m. on 28.7.2003. ASI Jog Raj PW26
along with other police personnel, on receipt of aforesaid           E
information, proceeded to Zonal Hopital, Chamba. ASI Jog Raj
moved an application to the Senior Medical Officer, Zooal
Hospital, Chamba for seeking medical opinion whether Kamini
Verma alias Doli was fit to make a statement. In the first
instance Dr. D.P. Dogra PW11 gave a report at 12:20 hrs. (on         F
28.7.2003) to the effect that Kamini Verma was not fit to make
her statement. The said opinion was tendered as her pulse rate
and blood pressure, at that time, were not recordable, and also
because, she had no control over her speech. Subsequently;
at 13:00 hrs. on 28.7.2003 itself, Dr. D.P. Dogra PW11               G
declared her medically fit. It was thereafter, that the statement
of Kamini Verma came to be recorded by ASI Jog Raj in the
presence of Dr. D.P. Dogra. The statement recorded was then
read out to Kamini Verma, whereupon, in token of its
c9rrectness, she affixed her right thumb impression on the           H
same. Both Dr. D.P. Dogra PW11 and ASI Joq Rai PW26
    282   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A recorded their endorsements on the statement of Kamini
  Verma. The statement of Kamini Verma was the basis of
  registering FIR No.182 of 2003 at Police Station Sadar,
  Chamba on 28.7.2003. Kamini Verma repeated the same
  version of the incident to her father Arun Kumar PW2 on her
B way to Amritsar (from Chamba).

       8. Kamini Verma, who was originally taken to Zonal
  Hospital, Chamba, was referred to Zonal Hospital,
  Dharamshala. However, on her discharge from Zonal Hospital,
C Chamba, she was taken for treatment to Ram Saran Dass,
  Kishori Lal Charitable Hospital, Amritsar (Kakkar Hospital,
  Amritsar) in the State of Punjab. Kamini Verma died at Kakkar
  Hospital, Amritsar on 1.8.2003 at 04:00 hrs. In the post-mortem
  report of Kamini Verma (Exh.PW13/C) it was opined, that she
  had died due to gun short injuries leading to injuries to her
D abdominal viscera and disseminated intravascular bleeding
  leading to shock and death.

        9. The pellets, recovered from the wounds of Kamini
  Verma and from the dead body of Rakesh Kumar at Zonal
E Hospital, Chamba, were handed over to the police. Inspector
  Khub Ram PW27, went to the place of occurrence for inquest.
  From the spot, i.e., courtyard of the house of Arun Kumar (PW2,
  father of Kamini Verma) he collected blood samples from the
  floor, two plastic caps, 35 pellets lying on the floor, besides 3
F pellets embedded in a door of the house. Two empty cartridges
  were also recovered from outside the gate of house of Arun
  Kumar PW2.

      10. On the date of occurrence itself, i.e., on 28. 7.2003, .the
G scooter, on which the appellant-accused nos.1 and 2 had made
  good their escape was stopped at Bhatulun Morh at a police
  "nakka" while they were proceeding towards Khajjiar from
  Chamba. Dheeraj Verma and Deepak Verma, appellant-
  accused nos.1 and 2 were identified. A double barrel gun,
  which was in their possession, was found with one live cartridge .
H and one spent cartridge. The gun, the live as well as spent
      DEEPAK VERMA v. STATE OF HIMACHAL                       283
      PRADESH [JAGDISH SINGH KHEHAR, J_.]
cartridges, and the scooter on which they were apprehended, A
bearing registration no.PB-58-A-0285 were taken into
possession by the police. Both the accused were also taken
into custody. On the personal search of both the accused, four
live cartridges were recovered from the pocket of Dheeraj
Verma, appellant-accused no.1. Based on a disclosure B
statement made on 31. 7.2003 by Dheeraj Verma appellant-
accused no.1, 13 more live cartridges beside four empty
cartridges were recovered from a cupboard in his bedroom.
The licence of the double barrel gun was also recovered from·
their residence.                                                     c
      11. The double barrel gun recovered from the appellant-
accused nos.1 and 2 was sent to the Forensic Science
Labor"tory, Bharari, Shimla, Himachal Pradesh. In his report,
the Assistant Director opined; firstly, that the double barrel gun
recovered from the accused was capable of firing; secondly,          D
that 3 empty cartridges recovered from the place of occurrence
may have been fired from the recovered gun; and thirdly, that
the pellets recovered may have been fired from the empty
cartridges recovered from the spot.
                                                                     E
     12. On the completion of investigation, the prosecution
presented a challan in the. court of Chief Judicial Magistrate,
against both the accused, under sections 302 and 323 read
with section 34 of the Indian Penal Code, besides section 27
of the Indian Arms Act. The Chief Judicial Magistrate committed . F
the case for trial to the Court of Sessions on 22.10.2003. On
12.1,2004 the Sessions Judge, Chamba, framed the charges,
as were proposed by the prosecution. In order to bring home
the charges, the prosecution examined as many as 27
witnesses. The cumulative effect of the statement of witnesses G
examined by the prosecution has been narrated in the foregoing
paragraphs. After recording the prosecution evidence, the
statements of Dheeraj Verma, appellant-accused no.1 and
Deepak Verma, appellant-accused no.2 were recorded under
Section 313 of the Criminal Procedure Code. The accused, .
                                                                     H
    284    SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A besides denying the correctness (or knowledge) of the factual
  position, with which they were confronted, alleged that a false
  case has been registered against them due to business rivalry.
  It is pertinent to mention, that the father of the deceased Kamini
  Verma, i.e., Arun Kumar PW2, as also, the father of the
B appellant-accused Dheeraj Verma and Deepak Verma,
  namely, Shyam Lal, were admittedly goldsmiths, and were
  engaged in the said business.

         13. Sessions Trial No.55 of 2003 came to be disposed
    of on 30.12.2005 whereby the Sessions Judge, Chamba
C   convicted the accused Dheeraj Verma and Deepak Verma for
    offences punishable under section 302 and 323 read with
    section 34 of the Indian Penal Code, as also, under section 27
    of the Arms Act. On the date of their conviction, i.e., on
    30.12.2005 itself, after affording an opportunity of hearing, the
D   appellants-accused nos.1 and 2 were sentenced under Section
    302 read with Section 34 of the Indian Penal Code, to
    imprisonment for life and to pay fine of Rs.25,000/- each (in
    default of payment of fine, they were to undergo further simple
    imprisonment for two years). The appellants-accused nos.1 and
E   2 Dheeraj Verma and Deepak Verma were also sentenced
    under Section 323 read with Section 34 of the Indian Penal
    Code, to undergo simple imprisonment for a period of six
    months and to pay a fine of Rs.1000/- each (in case of default
    of payment of fine, they were to undergo further simple
F   imprisonment for orie month). The appellants-accused Dheeraj
    Verma and Deepak Verma were sentenced to undergo two
    years rigorous imprisonment, for the offence punishable under
    Section 27 of the Arms Act. The Sessions Judge, Chamba
    also ordered, that all the substantive punishments were to run
G   concurrently. ·

        14. Dissatisfied with the order rendered in Sessions Trial
    No.55 of 2003 by the Sessions Judge, Chamba on 30.12.2005,
    the appellants-accused nos.1 and 2 Dheeraj Verma and
    Deepak Verma preferred Criminal Appeal No.27 of 2006
H
      DEEPAK VERMA v. STATE OF HIMACHAL                     , 285
      PRA_DESH [JAGDISH SINGH KHEHAR, J.]

before the High Court of Himachal Pradesh. Criminal Appeal           A
No.27 of 2006 was, however, dismissed by the High Court on
2.9.2009, on merits, as well as, on the quantum of sentence
imposed on the appellants-accused.

     15. Dissatisfied with the order dated 30.12.2005 passed 8
by the Sessions Judge, Chamba in Sessions Trial No.55 of
2003, as well as, the order dated 2.9.2009 passed by the High
Court of Himachal Pradesh in Criminal Appeal No.27 of 2006,
th~ appellants-accused nos.1 and 2 Dheeraj Verma and
Deepak Verma have approached this Court by filing the instant C
appeals.

      16. The first and foremost contention advanced at the
hands of the learned counsel for the appellants was, that the
case set up by the prosecution was false and fabricated. It was
submitted, that the facts brought forth by the prosecution clearly   D·
lead to the inference, that there was no involvement whatsoever
of the two accused Dheeraj Verma and Deepak Varma. In so
far as the instant aspect of the matter is concerned, it was the
contention of the learned counsel for the appellants that the
statements of Deepak Kumar PW1, Arun Kumar PW2, Sonia                E
PW3 and Sumitri Devi PW4 reveal, that the two accused were
well-known to the members of the family of the deceased
Kamini Verma. In this behalf it was sought to be asserted, that
according to the prosecution version, the two accused Dheeraj
Verma and Deepak Verma had come to reside in the house               F
of Arun Kumar PW2 along with their father Shyam Lal; as
tenants. According to the learned counsel, it is also the case
of the prosecution, that Deepak Verma, appellant-accused no.2
had been giving home tuitions to the deceased Kamini Verma
and her brother Deepak Kumar PW1. lnspite of being in an             G
effective position to identify both the accused on account oHheir
long.past relationship, it was submitted, that the names of the
two accused Dheeraj Verma and Deepak Verma came to be
disclosed, for the first time at 13:00 hrs., through the statement
of the deceased ~amini Verma, which was recorded by the ASI          H
    286   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A   .Jog Raj PW26. Stated in other words, it is the contention of
    the learned counsel for the appellants, that even though the two
    accused were well-known to the entire family of the deceased
    Kamini Verma, yet all the family members of the deceased
    Kamini Vemra remained tight-lipped till the eventual disclosure
B   of the names of the two accused by Kamini Verma herself, at
    the Zonal Hospital, Chamba. It is, therefore, the contention of
    the learned counsel for the appellant, that the statements of all
    the eye-witnesses (Deepak Kumar PW1, Sonia PW3 and
    Sumitri Devi PW4) who were close family members of the
c   deceased Kamini Verma and Rakesh Kumar, and had known
    the two accused for a long time, should not be relied upon. It
    is sought to be suggested, that all these close relations of the
    deceased Kamini Verma must be deemed to have been
    tutored, to make false statements against the appellants
    Dheeraj Verma and Deepak Verma at the instance of the
0
    investigating officers. It is submitted that the crime in question
    came to be committed at 10:30 hrs., on 28.7.2003, and yet
    none of the aforesaid eye-witnesses disclosed the names of
    the offenders. It is sought to be suggested, that the names
E   would have been disclosed only if they had actually witnessed
    the occurrence. It is therefore, submitted that none of the
    aforesaid eye witnesses actually witnessed the occurrence. It
    is, accordingly, the submission of the learned counsel for the
    appellant, that the prosecution version deserves to be rejected
    outright, and the appellants-accused Dheeraj Verma and
F   Deepak Verma deserve to be acquitted.

         17. We have given our thoughtful consideration to the first
    and the foremost contention advanced at the hands of the
    learned counsel for the appellants, as has been noticed in the
G   foregoing paragraph. The facts, as they unfold from the
    prosecution story reveal, that the occurrence took place at
    10:30 hrs. on 28.7.2003. Both Kamini Verma and Rakesh
    Kumar were taken to the Zonal Hospital, Chamba immediately
    after the occurrence. Rakesh Kumar was declared dead at
H   12:30 hrs. on the date of occurrence, i.e., on 28.7.2003 itself.
      DEEPAK VERMA v. STATE OF HIMACHAL                      287
      PRADESH [JAGDISH SINGH KHEHAR, J.]

 The condition of Kamini Verma was critical at that juncture. This , A
 is evident from the fact that Dr. D.P. Dogra PW11 gave a report
 at 12:20 hrs., (on 28.7.2003) to the effect, that Kamini Verma
 was not fit to record her statement. The attending doctor had
 recorded, that her pulse rate and blood pressure were not
 recordable. In the peculiar facts, as have. been noticed B
 hereinabove, it is evident that the first endeavour of all close
 family members would have been, to have the two injured
 Kamini Verma and Rakesh Kumar treated at the Zpnal
 Hospital, Chamba. None of the close family members could
 have been expected to proceed to the police station to lodge       c
 a /eport when both the injured were critical. Full attention for
 the welfare of the two close family members would have been
 the expected behaviour of all family members. The action to be
 taken against the assailants, would have been a matter of
 secondary concern. The contention of their not having made any · D
 statements at that juncture to the police, cannot therefore, be
 considered unnatural. Kamini Verma was declared medically ·
 fit at 13:00 hrs., on 28:7.2003 by Dr. O.P. Dogra PW11. She
 specifically identified the two accused Dheeraj Verma and
 Deepak Verma as the perpetrators of the occurrence. There
 is no reason whatsoever to doubt the dying declaration made E
 by Kamini Verma. Besides, the dying declaration of Kamini
 Verma, the prosecution endeavoured to establish the guilt of
 the accused, by producing three eye-witnesses. Deepak Kumar
 PW1, (aged 14 years at the time of occurrence), who was in
 the courtyard itself at the time of occurrence was the younger F
 brother of the deceased Kamini Verma. In his deposition, he
 reiterated the factual position recorded by Kamini Verma in her
 dying declaration. The grand-mother of the deceased, namely,
 Sumitri Devi PW4, aged 61 years, is a stamped witness. At
 the time of occurrence she was hit by Dheeraj Verma, G
 appellant-accused no.1, in her abdomen, chest and on her right
 wrist with the butt of his double barrel gun. She also identified
·the accused in her statement. On medical examination she was
 found to have suffered multiple bruise~, which could have been
                                                                     H
    288   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A caused by the butt of a double barrel gun. Additionally, Sonia
  PW3 is also an eye-witness whose statement was recorded.
  She was the wife of the deceased Rakesh Kumar. She had
  come into the courtyard on hearing the first shot fired at Kamini
  Verma. The dying declaration of Kamini Verma was
B supplemented by Sonia PW3 as well. The aforesaid three
  witnesses, a young boy, the wife of the deceased and an old
  grandmother are natural witness, whose presence at the place
  of occurrence, does not cast any shadow of doubt. The
  prosecution was able to establish the motive of the appellants-
C accused in having committed the crime. In so far as the instant
  aspect of the matter is concerned, the alleged motive of
  declining the marriage proposal of the appellant-accused no.1,
  at the hands of his elder brother, appellant-accused no:2
  Deepak Verma was reiterated by Deepak Kumar PW1, Arun
  Kumar PW2, Sonia PW3 as also Sumitri Devi PW4, as well
D as, by Kamini Verma in her statement recorded by ASI Jog Raj
  PW26. It is only on account of the rejection of the aforesaid
  marriage proposal that Dheeraj Verma and Deepak Verma,
  the appellants-accused nos.1 and 2, as an act of retaliation and
  vengeance, jointly committed the offence in question. It is also
E necessary to notice, that no reason whatsoever emerges from
  the evidence produced before the Trial Court why the family of
  the deceased Kamini Verma and/or Rakesh Kumar would
  falsely implicate the accused-appellants nos.1 and 2. The
  cumulative effect of all the factors mentioned above, clearly
F negate the suggestions/ submissions advanced by the learned
  counsel for the appellants as a part of his first contention. It is,
  therefore, apparent that there is no merit in the first contention
  advanced at the hands of the counsel for the appellants.

G      18. The second contention advanced at the hands of the
  learned counsel for the appellants was limited to the appellant-
  accused no.2 Deepak Verma. In so far as the second
  submission is concerned, it was sought to be asserted that no
  role whatsoever has been attributed to appellant-accused no.2
H Deepak Verma. It was pointed out, that as per the prosecution
     DEEPAK VERMA v. STATE OF HIMACHAL                      289
     PRADESH [JAGDISH SINGH KHEHAR, J.]
witnesses, the double barrel gun which came to be fired at          A
Kamini Verma and Rakesh Kumar, had remained in
possession of Dheeraj Verma, appellant-accused no.1
throughout the occurrence. All the shots were fired by Dheeraj
Verma, appellant-accused no.1. It was pointed out, that as per
the prosecution story, it was Dheeraj Verma, appellant-accused      8
no.1 alone, who had allegedly fired shots, in the first instance
at Kamini Verma, and thereafter, at Rakesh Kumar. It was
submitted, that none of the shots was fired by Deepak Verma
appellant-accused no.2: It is submitted, that even if the
prosecution story is examined dispassionately, it would emerge      C
that Deepak Verma, accused-appellant no.2 was a mere by-
stander, and had no role whatsoever in the commission of the
crime in question. In order to buttress the aforesaid contention,
learned counsel for the appellants, in the first instance, placed
reliance on State of Uttar Pradesh vs. Sahrunnisa & Anr.
(2009) 15 SCC 452, wherefrom he placed emphatic reliance            D
on the following observations:
                                           I
    "18. There can be no dispute that these two respondents
    were present and indeed their mere presence by itself
    cannot be of criminal nature in the sense that by their mere E
    presence a common intention cannot be attributed to them.
    Indeed, they have not done anything. No overt act is
    attributed to them though it was tried to be claimed by one
    of the witnesses that when the police party reached there
    they were standing on one leg. This also appears to be a F
    tall claim without any basis and the High Court has rightly
    not believed this story which was tried to be introduced."
Additionally, reliance was placed on Aizaz & Others vs. State
of Uttar Pradesh (2008) 12 SCC 198. In so far as the instant
judgment is concerned, our attention was invited to the following G
observations:
    "11 .... It is a well-recognised canon of criminal
    jurisprudence that the courts cannot distinguish between
    co-conspirators, nor can they inquire, even if it were H
    290     SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A         possible, as to the part taken by each in the crime. Where
          parties go with a common purpose to execute a common
          object, each and every person becomes responsible for
          the act of each and every other in execution and
          furtherance of their common purpose; as the purpose is
B         common, so must be the responsibility. All are guilty of the
          principal offence, not of abetment only. In a combination
          of this kind a mortal stroke, though given by one of the
          parties, is deemed in the eye of the law to have been given
          by every individual present and abetting. But a party not
          cognizant of the intention of his companion to commit
c         murder is not liable, though he has joined his companion
          to do an unlawful act. The leading feature of this section
          is the element of participation in action. The essence of
          liability under this section is the existence of a common
          intention animating the offenders and the participation in
D         a criminal act in furtherance of the common intention. The
          essence is simultaneous consensus of the minds of
          persons participating in the criminal action to bring about
          a particular result. (See Ramaswami Ayyangar vs. State
          of T.N. (1976) 3 SCC 779). The participation need not in
E         all cases be by physical presence. In offences involving
          physical violence, normally presence at the scene of
          offence may be necessary, but such is not the case in
          respect of other offences when the offence consists of
          diverse acts which may be done at different times and
F         places. The physieal presence at the scene of offence of
          the offender sought to be rendered liable under this
          section is not one of the conditions of its applicability in
          every case. Before a man can be held liable for acts done
          by another, under the provisions of this section, it must be
G         established that: (i) there was common intention in the
          sense of a prearranged plan between the two, and (ii) the
          person sought to be so held liable had participated in
          some manner in the act constituting the offence. Unless
          common intention and participation are both present, this
H         section cannot apply.
  DEEPAK VERMA v. STATE OF HIMACHAL                       291
  PRADESH [JAGDISH SINGH KHEHAR, J.]
  12. 'Common intention' implies prearranged plan and             A
  acting in concert pursuant to the prearranged plan. Under
  this section a preconcert in the sense of a distinct previous
  plan is not. necessary to be proved. The common intention
  to bring about a particular result may well develop on the
· spot as between a number of persons, with reference to
                                                                  8
  the facts of the case and circumstances of the situation.
  Though common intention may develop on the spot, it must,
  however, be anterior in point of time to the commission of
  offence showing a prearranged plan and prior concert.
  (See Krishna Govind Patil v. State of Maharashtra -AIR          C
  1963 SC 1413). In Amrik Singh v. State of Punjab [(1972)
  4 SCC (N) 42] it has been held that common intention
  presupposes prior concert. Care must be taken not to
  confuse same or similar intentton with common intention;
  the partition which divides their bonds is often very thin,
  nevertheless the distinction is real and substantial, and if    D
  overlooked will result in miscarriage of justice. To
  constitute common intention, it is-necessary that intention
  of each one of them be known to the rest of them and
  shared by them. Undoubtedly, ft is a difficult thing to prove
  even the intention of an individual and, therefore, it is all   E
  the more difficult to show the common intention of a group
  of persons. But however difficult may be·the task, the
  prosecution must lead evidence of facts, circumstances
  and conduct of the accused from which their common
  intention can be safely gathered. In Maqsoodan v. State         F
  of U.P. [(1983) 1 sec 218] it was observed that the
  prosecution must lead evidence from which the common
  intention of the accused can be safely gathered. In most
  cases it has to be inferred from the act, conduct or other
  relevant circumstances of the case in hand. The totality of     G
  the circumstances must be taken into consideration in
  arriving at a conclusion whe.ther the accused had a
  common intention to commit an offence for which they can
   be convicted. The facts and circumstances of cases vary
   and each case has to be decided keeping in view the facts      H
    292     SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.


A          involved. Whether an act is in furtherance of the common
           intention is an incident of fact and not of law. In Bhaba
           Nanda Sarma v. State of Assam ((1977) 4 SCC 396] it
          was observed that the prosecution must prove facts to
          justify an inference that all participants of the acts had
          shared a common intention to commit the criminal act
B
          which was finally committed by one or more of the
           participants. Mere presence of a person at the time of
          commission of an offence by the confederates is not, in
           itself sufficient to bring his case within the purview of
          Section 34, unless community of designs is proved against
c         him (See Ma/khan Singh v. State of U.P. (1975) 3 SCC
          311). In the Oxford English Dictionary, the word
          'furtherance' is defined as 'action of helping forward'.
          Adopting this definition, Rusell says that: 'it indicates some
          kind of aid or assistance producing an effect in future' and
D         adds that any act may be regarded as done in furtherance
          of the ultimate felony if it is a step intentionally taken, for
          the purpose of 'effecting that felony'. (Russel on Crime,
          12th Edn., Vol.I, pp. 487 and 488). In Shankarla/
          Kacharabhai v. State of Gujarat [AIR 1965 SC 260] this
E         Court has interpreted the word 'furtherance' as
          'advancement or promotion."
        Based on the observations recorded in the judgments
  relied upon it was submitted, that the appellant-accused no.2
F Deepak Verma had no role in the crime, except that he was
  present at the place of occurrence. It is therefore submitted, that
  his mere presence along with Dheeraj Verma accused-
  appellant no.1, cannot be a valid basis for his conviction.
       19. It is not possible for us to accept the contention
G advanced at the hands of the learned counsel for the appellant
  to the effect, that the appellant-accused no.2 Deepak Verma
  was not an active participant i.n the crime in question. The
  evidence produced by the prosecution clearly establishes that
  the two accused-appellants nos.1 and 2 Dheeraj Verma and
H
     DEEPAK VERMA v. STATE OF HIMACHAL                      293 .
     PRADESH [JAGDISH SINGH KHEHAR, J.]
 Deepak Verma had come to the house of Arun Kumar PW2               A
to commit the crime in question on a scooter. It is also apparent
that at one juncture only two cartridges can be loaded in a
double barrel gun. With the cartridges loaded in the gun, the
 appellant-accused no.1 Dheeraj Verma had fired the first two
shots at Kamini Verma. Thereafter, there were no live cartridges    B
 in the gun. Sumitri Devi, while appearing as PW4, pointed out,
that after the appellant-accused no.1 Dheeraj Verma had fired
two shots at Kamini Verma, the appellant-accused no.2 Deepak
 Verma provided two live cartridges to the appellant-accused
 no.1 Dheeraj Verma. Dheeraj Verma then reloaded his double         C
 barrel gun with the two live cartridges furnished by appellant-
 accused no.2 Deepak Verma, and fired one further shot at the
deceased Rakesh Kumar. After the commission of the crime,
 Dheeraj Verma and Deepak Verma, jointly made good their
 escape on a scooter bearing registration no. PB-58-A-0285.
When the two accused were apprehended at Bataluan Morh              0
 at a police "naka" the appellant-accused no.2 Deepak Verma
was driving the scooter, whereas, appellant-accused no.1
 Dheeraj. Verma was pillion riding with him. It, accordingly
emerges, that after having committed the crime, the appellant-
 a·ccused no.2 Deep~k Verma, also helped his brother                E
 appellant-accused no.1 Dheeraj Verma to make good his
 escape from the place of occurrence. It is, therefore, not
 possible for us to conclude that appellant-accused no.2
 Deepak Verma was merely a by-stander, who was incidentally
 present at the place of occurrence. In our considered view both    F
 Dheeraj Verma and Deepak Verma jointly planned and
committed the <:rime. The judgments relied upon by the learned
counsel for appellants are inapplicable to the facts and
circumstances of this case. Various eye-witnesses had
 identified the two accused who had committed the offence. The      G
dying declaration of Kamini Verma and the statements of her
 relations, who had appeared as prosecution witness, duly
 establishes the commission of the crime, as well as, the
 common motive for the two accused to had joined hands in
,committing the crime. The handing over of two live cartridges      H
     294    SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A by the appellant-accused no.2 Deepak Verma to his brother
  Dheeraj Verma, after he had fired two shots from the double
  barrel gun with which the crime in question was committed,
  completely demolishes the c9ntention advanced at the hands
  of the learned counsel for the appellants, in so far as the
8 participation of the appellant-accused no.2 Deepak Verma in
  the crime is concerned. For the reasons recorded herein above,
  we find no merit even in the second contention advanced at the
  hands of the counsel for the appellants.

          20. The third contention advanced at the hands of the
.C   learned counsel for the appellants was, that there was no motive
     whatsoever for the appellant-accused no.2 Deepak Verma to
     have committed the offence in question. It is the submission of
     the learned counsel for the appellants, that insult on account of
     non acceptance of the marriage proposal already referred to
D    above, may have been felt by appellant-accused no.1 Dheeraj
     Verma. There was no question of the appellant-accused no.2
     Deepak Verma to have felt any insult, or to have any motive to
     commit the offence in question. On account of lack of motive
     to commit the crime on the part of appellant-accused no.2
E    Deepak Verma, learned counsel emphatically submits, that the
     appellant-accused no.2 Deepak Verma deserves acquittal. In
     order to supplement his instant contention, learned counsel
     placed reliance on a judgment rendered by this Court in State
     of Uttar Pradesh v. Rajvir, (2007) 15 SCC 545, wherein the
F    State had approached this Court against the acquittal of the
     respondent. The High Court, while hearing the appeal against
     the respondent had re-appreciated the evidence by re-
     evaluating the statement of witnesses. While two of the accused
     were found to be guilty of murder, and accordingly, the sentence
G    passed by the Trial Court against them was upheld; the High
     Court was doubtful of the participation of the respondent in the
     murder of the deceased, according to learned counsel, solely
     on the ground that there was no motive for the respondent to
     commit the murder of the deceased. Adopting a cautious
H    approach, the High Court had acquitted the respondent by
     DEEPAK VERMA v. STATE OF HIMACHAL                      295
     PRADESH [JAGDISH SINGH KHEHAR, J.)
giving him the benefit of doubt. This Court found merit in the      A
determination of the High Court, and accordingly, upheld the
decision of the High Court by recording the following
observations:                   ·

    "8. We have carefully considered the submissions made
    by the learned counsel for the parties. It is the case of the   B
    prosecution that the other two accused, namely, Chander
    and Chhotey had motive against the deceased and the
    respondent had no motive whatsoever against the
    deceased; all the three accused were friendly among them.
    It is true that PWs 1 to 3 have supported the prosecution       C
    case that all the three accused werit to the house of the
    deceased on the date ~f the incident and the respondent
    called the deceased to attend a patient immediately. PWs
    1 to 3 also stated that all ttie three accused assaulted the
    deceased but the evi~nce of PVl/s 1 to 3 is specific and        D
    consistent as to the assault by ,the accused Cha.nder on
    the deceased with a knife. As to the assault by the
    respondent, the statements of the witnesses are general
    and vague. No speCific overt act is attributed to the
    respondent. It may also be, mentioned here that there was       E
    no recovery of knife from the respondent. There was
    recovery of bloodstained clothes from the accused
    Chander. It is possible that on the accused Chander and
    Chhotey asking the respondent to accompany them to the
    house of the deceased to show a patient or the respondent       F
    himself might have taken a patient also for examination by
    the doctor. Mere presence of the respondent on the spot
    when the incident took place was not sufficient to hold that
    the respondent had shared the common intention to kill the
    deceased; particularly so when the respondent had no            G
    motive whatsoever. PW1, the brother of the deceased
    himself has stated that the respondent had no ill-will or
    motive against the deceased. It is under these
    circumstances, the motive aspect assumed importance.
    There is no dispute as to the legal position that in the        H
    296 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A       absence of motive; or the alleged motive having not been
        established; an accused cannot be convicted if the
        prosecution is (sic not) successful in establishing the crime
        said to have been committed by an accused by other
        evidence. At any rate, a doubt definitely arose in the case
        in hand as to what was the reason or motive for the
B
        respondent to commit the murder of the deceased. In State
        of U.P. v. Hari Prasad ((1974) 3 SCC 673] this Court
        dealing with the aspect of motive has stated thus: (SCC
        pp. 674-75, para 2):
c              "This is not to say that even if the witnesses are
               truthful, the prosecution must fail for the reason that
               the motive of the crime is difficult to find. For the
               matter of fact, it is never incumbent on the
               prosecution to prove the motive for the crime. And
D              often times, a motive is indicated to heighten the
               probability that the offence was committed by the
               person who was impelled by the motive. But, if the
               crime is alleged to have been committed for a
               particular motive, it is relevant to inquire whether the
E              pattern of the crime fits in with the alleged motive."
        The present case is not the one where the prosecution has
        successfully proved the guilt of the respondent beyond
        reasonable doubt by other evidence on record to say
        motive aspect was immaterial."
F
        Based on the aforesaid factual and legal position, it is
    submitted, that the appellant-accused no. 2 Deepak Verma
    deserved acquittal.
G       21. We have examined the third submission canvassed at
  the hands of the learned counsel for the appellants, based on
  the plea of motive. While dealing with the second contention,
  advanced at the hands· of the learned counsel for the appellants,
  we have already concluded hereinabove, that there was
H sufficient motive even for the appellant-accused no.2 Deepak
      DEEPAK VERMA v. STATE 0[ HIMACHAL                      297
      PRADESH [JAGDISH SINGH KHEHAR, J.]
Verma to commit the crime in question, in conjunction wi.th hiS A
younger brother Dheeraj Verma, appellant-accused. !Jo.1. Be
that as it may, it would be relevant to indicate, keepiRQ in mind
the observations recorded by this Court as have been brought
to our notice by the learned counsel for the appellants (which
we have extracted hereinabove), that proof of motive is not a 8
sine qua non before a person can be held guilty of the
commission of a crime. Motive being a matter of the mind, is
more often than not, difficult to establish through evidence. In
our view, the instant contention advanced by the learned counsel
for the appellant is misconceived in the facts and circumstances C
of the case. In the present case, there is extensive oral
evidence in the nature of the statements of three eye-witnesses
out of which one is a stamped witness, that appellant-accused
no.2 Deepak Verma was an active participant in the crime in
question. There is also the dying declaration of Kamini Verma
implicating both the accused. In the case relied upon by the D
learned counsel fo,r the appellant, the oral evidence produced
by the prosecution to implicate the respondent with the
 commission of the crime, was not clear. Accordingly, in the
absence of the prosecution having been able to establish even
the motive, the High Court (as well as, this Court) granted the E
 respondent the benefit of doubt. That is not so, in so far as the
present controversy is concerneq The oral evidence against
the appellant-accused no.2 Deepak Verma is clear and
unambiguous. Besides, motive of appellant-accused no.2
Deepak Verma is also fully established. We are therefore F
satisfied, that the judgment relied upon by the learned counsel
for the appellant has no relevance to the present case. We,
therefore, find no merit even in the third contention advanced
at the hands of the learned counsel for the appellants.
                                                                     G
      22. The last contention advanced at the hands of the
 learned counsel for the appellant was, that the dying declaration
.of Kamini Verma which became the 'basis of registering the
 First Information Report itself, was forged and fabricated.
 Learned counsel for the appellants, vehemently contended that       H
   298     SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A the very foundation of the prosecution story itself being
   shrouded in suspicious circumstances, must lead to the
   inevitable conclusion, that the appellants-accused have been
   falsely implicated in the crime in question. In so far as the
   instant aspect of the matter is concerned, it was the vehement
8 contention of the learned counsel for the appellants, that Kamini
   Verma was declared medically unfit to make a statement by
   Dr. D.P. Dogra PW11 at 12:20 hrs., on 28.7.2003. Pointing out
   to Exhibit PW11/B, it was the submission of the learned counsel
   for the appellants, that the medical report, showing that Kamini
C _Verma was not fit to make a statement, had been made on the
   ground that her pulse rate and blood pressure were not
   recordable. According to the learned counsel, within just 40
   minutes, the same Dr. D.P. Dogra PW11 gave a report at
   13:00 hrs., that Kamini Verma was fit to record her statement.
I) Learned counsel for the appellants, also invited the court's
   attention to Exhibit PW11/C, PW23/A and PW26/A so as to
   point out a number of discrepancies. It was submitted, that there
   are a number of cuttings/overwritings, of the time at which the
   endorsements on dying declaration of Kamini Verma were
   recorded. It is submitted, that the tim~ has been altered from
E 12:20 p.m. to 1:00 p.m. This, according to the learned counsel
   was done, to match with the time given by Dr. D.P. Dogra
   PW11. Pointing to the endorsement of Dr. D.P. Dogra, it was
   submitted that Dr. D.P. Dogra had endorsed the dying
   declaration at 13:00 hrs. It was pointed out, that the time of the
F endorsement made by ASI Jog Raj PW26 (under the dying
   declaration of Kamini Verma) was recorded at 1:30 p.m., which
   was subsequently altered to 1:00 p.m. to match with the time
   recorded in the endorsement made by Dr. D. P. Dogra PW11.
   Additonally, it was the contention of the learned counsel for the
G appellants, that the language of the dying declaration itself
   shows, that the same was not a voluntary statement made by
   Kamini Verma, but actually the handiwork of ASI Jog Raj
   PW26, who had recorded the aforesaid statement. In this
   regard learned counsel for the appellants pointed out, that
H various words and observations were used in the dying
     DEEPAK VERMA v. STATE OF HIMACHAL                    299
     PRADESH [JAGDISH SINGH KHEHAR, 'J.]
declaration, which are in use of police personnel (and/or A
advocates), but not in the use of common persons. U is,
therefore, sought to °be submitted that the1dying declaration of
Kamini Verma, allegedly recorded at 13:00 hrs., on 28.7.2003,
at Zonal Hospital, Chamba not being her ewn voluntary
statement, was liable to be discarded !from the prosecution B
version. In case the same is ignored, the entire prosecution
story, according toJhe learned counsel for the appeUants, woulc;I
crumble like a house of cards.

     23. We have considered the last submission advanced aI
the hands of the learned counsel for the appellants. There can C
be no doubt that there are certain discrepancies in the time
recorded in the dying declaration. Additionally, there can also
be no doubt that certain words which are not in common use
have found place in the dying declaration made by Kaniini
Verma. Despite the aforesaid, we find no merit in the D
stlbmission advanced at the hands of the learned counsel for
the appellant. It is not possible for us to accept, that Kamini
Verma was not fit to make her statement when she actually
recorded the same in the presence of ASI Jog Raj PW26 and
Dr.D.P. Dogra PW11. The very medical report, relied upon by E
the learned counsel for the appellants, which depicted that 'the
pulse rate and blood pressure of Kamini Verma was not
recordable, also reveals, that on having been given treatment
her blood pressure improved to 140/70 and her pulse rate
improved to 120 per minute. This aspect of the medical report F
is not subject matter of challenge. The fact that the incident
occurred on 28.7.2003 and Kamini Verma eventually died on
1.8.2003, i.e., 4 days after the recording of the dying
declaration also shows that she could certainly have been fit
to make her dying declaration on 28.7.2003. Her fitness was G
actually recorded on the dying declaration by Dr. D.P. Dogra
PW11. A number of prosecution witnesses reveal that she was
conscious and was able to speak. Kamini Verma after having
recorded her. statement before ASI Jog Raj PW26, also
repeated the same version of the incident (as she had narrated
                                                                 H
    300    SUPREME COURT REPORTS [2011] 14 (AbDL.) S.C.R.


A while recording her dying declaration) to her father Arun Kumar
  PW2, when she was being shifted from Chamba to Amritsar
  for medical treatment. Moreover, Dr. D.P. Dogra PW11
  appeared as a prosecution witness, and affirmed the veracity
  of her being in a fit condition to make the statement. There is
8 no reason whatsoever to doubt the statement of Dr. D.P. Dogra
  PW11. The question of doubting the dying declaration made
  by Kamini Verma could have arisen if there had been other
  cogent evidence to establish any material discrepancy therein.
  As already noticed hereinabove, three eye witnesses, namely,
C Deepak Kumar PW1 , Sonia PW3 and Sumitri Devi PW4 have
  supported the version of the factual position depicted in the
  statement of Kamini Verma. It is, therefore, not possible for us
  to accept, that the statement of Kamini Verma was either false
  or fabricated, or that, the statement was manipulated at the
D hands of the prosecution to establish the guilt of the appellants-
  accused nos.1 and 2 Dheeraj Verma and Deepak Verma, or
  that she was not medically fit to make a statement. The
  discrepancies in recording time, as well as, the overwriting
  pointed out are too trivial to brush aside the overwhelming oral
  evidence produced by the prosecution, details whereof have
E been repeatedly referred to by us, while dealing with the various
  submissions advanced at the hands of the learned counsel for
  the appellants. We, therefore, find no merit even in the last
  contention advanced at the hands of the counsel for the
  appellants.
F
       24. In view of the above we hereby affirm the order passed
  by the Trial Court dated 30.12.2005 (in Sessions Trial No.55
  of 2003) and also, the order passed by the High Court dated
  2.9.2009 (in Criminal Appeal No.27 of 2006). Both the appeals
G preferred by appellants-accused nos.1 and 2, Dheeraj Verma
  and Deepak Verma are, accordingly, dismissed.

    D.G.                                       Appeal dismi.ssed.