'^£;>. ••i.s.. \\ -78 •'•'c''~ an^rw K-u* ^fSff 3Tf^?T sft*i|ch :,.®;!g?5p!(. T y~ ^gq- ^i.iji^, ®Tf1<rf'is,Ri^i'yy _....G2..A:...<fc WttW *Mlcb •W^ 200^- an^yr''ra^ (Taf^^w) 'reiiwofer sn^T APPELLANT: (!n Jaii) RESPONDENT: ivision Bench: Mohan, S/o Hari Durga, Aged 19years, R/o R.B.H. Colony, Raipur. IVersus - StateofC.G. {Appeal under S^Aon 374 ofthe Cr.P.C.} le mr. L.C. Hon'bie Mr. T.P. Sharma, JJ. Mrs. Savita Tiwari, counsel f( Mr. D.K. Gwalre, Addition^ Yadav, DeputyGovt. Advocate for Oral judgment dictated on Ds L.C.Bhadoo, J: - This appea! is directed against tl] sentence dated 27-3-2002 passec) Raipur in Sessions Trial No.: Addjtionai Ssssions Judge after commission of offence under Secti Kailash, sentenced him to underd Rs.200/-, in default of payment also convlcted the accused under .i.P.C. and sentenced to undergo Rs.1,000/-, in default of payment months. Co-accused Pramod Soni >r the appeltant. |1 Public Prosecutor with tie State/respondent. offiihe cbl-4^41'1 tTFR'ff ^f.'fe^ <P^4^R ^3TfilH3TI^t 206|f2001 !S. |e judgment of conviction and order of by the 3 Additional Sessions Judge, whereby & whereunder learned Ijiolding the accused/appeltant guilty for i()n 324 of the t.P.C. for causing injury to jo R.l. for one year and pay a fine of to further undergo R.f. for two months, pection 302 read with Section 34 of the |mprlsonment for life and pay a fine of |of fine to further undergo R.l. for two |was convicted under Sections 302 & 324 XI-H^ SV^I ?5T R-ft<* '^KTT 3TT^?T sft+iicfi .^-s^%^ ^^^ys^ S^Sft »»?, 75^ •^wi'ft^, •a-^ww, ^<flwy ^2- UIN^I **<!* &.^^s "WI. 200 an^?r iiaw (iyF-i«i<^3) 'reiiwdfer sii^r read w'th Section 34 of the I.P.C. for tife and pay a fine of Rs-1,000^ undergo R.l, for two months & to u| Rs.200/-, in default of payment off| respectively, whereas, co-accus^Hi co-accused Hemant is stil! absconcj while he was in custody and was Hospital, Raipur, the .appeal in |and sentenced to undergo imprisonment in default of payment of fine to further fidergo R.!. for one year and pay a fine of he to further undergo R.l. for two months, Bhagirathi Soni was acquitted, however |ir>g. Smce co-accused Pramod Soni died ^jndergQing treatment in Medica! Coltege of Pramod Soni has been held to be rest>ect Case of the prosecutlon, in brief, complainant Kailash along with acit however, some dispute sterted bet( during that dispute, Hemant, Pr4 Kailash and started abusing him. knife on his forehead and left ear.l Kailash, came out of the house anc| abusing Lalita attacked her with SM| her chest on which she started oersons fled the scene of occurret Injured condition where she died di) by Kailash, whereupon the first iiti under Sections 324, 294 read wi| registered. After the death of Lalitdi was converted to Section 302 of th^ et)i<i(<"i<n*i ^in<"if ^f."fel3t ^+^K ^ sifin •aii^r |s that at about 10.30 p.m. of 24-2-2001 ^used persons were gambling with cards, jween them regarding payment of money, |imod Soni & Bhagirathi Soni attacked Hemant & Mohan attacked Kailash with Hearing the commotion, Lalita,sister of tried to intervene on which Hemant after 1/ord. Pramod attacked her with knife on 4rying. Hearing her cries, the accused hce. Lalita was taken to the hospitai in jiring treatment The matter was reported iitiformation report for offence punishable ith Section 34 & 307 of the I.P.C. was i, offence under Section 307 of the I.P.l I.P.C. c. Xt-Hg 3'Eq' '<||t||(>i<|, ®T(1+I'IS,[q<»>l^y y fi2.:..A..:..<fc.^^., an^CT IRTO (^f^?<i) Wt 2005^ OT^SI ?n friw WIT 3!K?[ sbXI* 9sv V!S^M :'^c^-^-;-^ 4 TOIIW ^lfW 311^1 After completion of investigation, accused persons in the tourt of Jui|iicia in turn committed the case to th^ learned 3 Additional Sessions Judl for trial. charge sheet was filed against three Magisfrate, First Class, Raipur, who s Sessions Judge, Raipur, from whsre ^e, Raipur, received the case on transfer The prosecution in order to estabti^h examined 25 witnesses. Statement under Section 313 of the Cr.P.C^^i denied the material appearing again|st charges against the accused persons s of the accused persons were recorded in which the present accused/appetlant him in the prosecution evidence. We have heard Mrs. Savita Tiwari, D.K. Gwa!re, learned Additionat Pul learned Deputy Govt. Advocate on t Learned counsel for the appellant a; appeliant is concerned, there is noi Intention with accused Pramod & he attacked Kailash with knife as a| injury, said knife.was snatehed by fc €'J-lC~t<-a-*^-^i thereafter, Pramod attacked dece^ Section 302 of the I.P.C. with the ai| sustainable. Learned counsel furthl Section 324 of the I.P.C. is concernl <;til<lf?l<flt "WRTf Tf,fg<^t <f^it$l< ^aifinsii^r |earned counsei for the appellant and Mr. \>\ic Prosecutor with Mr. Sandeep Yadav, (ehalf of the State/respondent. ^gued that as far as the present accused/ allegation that he was sharing common -femant for causing the death of Latita. She further argued that the allegatj^n against the present appellant was that result of which Kailash sustained simpte Hemant from the accused/appel'ant and * sed Latita. Therefore, conviction under a of Section 34 of the I.P.C. is not sr argued that as far as conviction under ad, the accused was in custody from 8-3- ,2001 up to 5-7-2003, thereby he h^s already served the sentence imposed upon him under Section 324 of the P.C. — x[-Hs-a&?@ <fc>. -iiSSs- <ni^r?B R;i(<h '^Tsn^'aRN? *ir.^.;-!&^ •'-'sffie'-;^: 7. ~3:s3i '<<i<ii^<i, ^siTfl^'Ks, lct(?»i'yy L...d..:....^.^...^J.... ••"•-•/"""^ 200^, -4-- an^?f t|sra; (ij<<F'l'si<v) e+fli^ 4ifed sn^T On the other hand, learned respondent supported thejudgmen| in para 26 of the judgment, learnep Hemant had attacked Lalita with •tf. Laiita, but in the quarre! with Kait ^. Hemant attacked him with knife inten/ene, she was attacked by'\ that Mohan had common intentiork'b coi^isel appearing on behalf of the State/ of the trial Court. trial Court has observed that Pramod & |<nife & sword, Mohan had not attacked t^sh (brother of Lalita) accused Mohan & bnd when Lalita came on the scene to & Pramod. Therefore, it establishes tvith Pramod & Hemant to cause the death Hehant ofLal in the matter of Girija Shankar v^ order to attract Section 34 ofthe I.Ff "Section 34 has been liabiiity in the doing of a a ruie of evidence and] offence. The distinctiv^ element of participation person for an offence of criminal act under S.34 if such common intention of thel the crime. Direct proof available and, therefor^ inferred from the proved facts of the case| in order to bring home the prosecution has to direct or circumstantial, y mind of ail the accused which thsy are chargesf arranged or on the sii necessarily be before thi tru^concept ofSection ^ «bi<ifi'i<D'i'wraf ^1s<st <r»i<(i< ^stRiH^n^T . State of U.P. (2004 AIR SCW 810), in .C. the Apex Court held as under: - etiacted on the principie of joint ;riminal act. The Section is oniy Idoes not create a substantive feature of the Section is the |in action. The liabitity of one coitimitted by another in the course by several persons arises act is done in furtherance of [personswho join in committing lof common intention is seldom such Intention can oniy be appearing from the and the proved cireumstances. charge of common intention, ^stablish by evidence, whether there was plan or meeting of plsrsons to commit the offence for with aid of S.34, be it pre- moment; but it must commission ofthecrime. The ?4 is that if two or more persons perpefr^ted crimijia! circuknstances ttie sipur XI-HG^7« 3^T "41'41^'M, (STflti'IS, (strtiuy ^r^ ^.^:....c^.^ "d^ 200 3n^?r fra; ( an^r^i'f^nw W CT^I s>*nv B!a'i'iSR:';^8taN:!':B]r •• "aw, 11 ?BIRR iltol 311^1 them df intentionallv do an act iolntlv the same as.if each of himself. The existence the participants in a crirfe appiicatron of this Sectio(i. acts of the severai an offence jomtly thust b^ The acts may be differe^it been actuated by-one an<P order to attract the Applying the above principle, if we provisipn sotne kiiife vfrith admittedly, at the time of occurrent was gambling with cards, after them regarding payment of mone^t Mohan first attacked Kai!ash with kitil tn the mean time, Latita came outl Hemant attacked deceased Lalita of Kailash Kumar (PW-9), Hemant| instance, Hemant attacked Kaitai attacked Lalita with knife on her n^c Mohan was already snatehed by attacked the deceased. The quar( sudden when they were gamblinfe cireumstances, it cannot be infert common Intention with accused Laiita, as such, conviction of Section 34 of the I.P.C. cannot be s< Accordingly, the appeal is partly upon accused/appeilant Mohan thel.P.C.aretetaside. He is e|>l<lfcl4-l 'qi'iaf "Ef.fe^ <I«l«;K iraifin sii^i the position in iaw is just has done it individuaiiy by a common intention amongst is the esssntial slement for It is not necessary that the s charged with the common of the same or identicatiy similar. in character but must have the same common intention in ^xamine the material avaiiable on record, ;e, Kailash along with accused persons time, some quarrei slarted between and in that process accused/appellant and Hemant also attacked with knife. of the house to intervene and accused sword, whereas as per the evldence Isnatched knife from Mohan, in the first iih with knife and thereafter, Pramod n^ck. Therefore, the knife which was with Hlemant and Hemant along with Pramod tel started between all of them, al! of a y/ith cards, therefore, in the above iferj'ed that accused Mohan was sharing & Pramod to commit the murder of under Section 302 with the aid of ilistained. I. CQnviction and sentences imposed Section 302 read with Section 34 of accjuitted of the said charge. However, his i-1e(nant MoHan alldwed uniUer 1-- XI-He—78:,;^.¥ 3=5q' "i||<(|<A'!1, ISiTfly'IS, fs|i?»l+<y -6-' ^~- :....B....±. V^ 200 an^yr tRR? ( an^i^r ft-ii'ti •gnisn^tTiiw ...ss'iSSSSS ^:-g?-s^-<^ Soma vti^S^'!'f wiiwdfetsn^i conviction under Section 324 (simrt been sentenced to undergo R.l. f(( default of payment of fine to furfher accused during trial was under d^tention 2003, thereby he has already senjed appellant is on bail. His bail bon(|s before the Court. *\ Sd/- L.C. Bhadoo Judge ctirqf<n<<li *ii*i<-ff '^jf^1^ <Pq<$i<, i; aifOT sii^r licitor) ofthe I.P.C. is mainteined. He has r one year and pay a fine of Rs.200/-, in undergo R.l. for two months. The with effect from 8-3-2001 to 5-7- the sentence imposed upon him. The are discharged, he need not surrender Sd/- T.P.Sharma Judge I—