HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON’BL‘E MR.T.P.SHARMA & HON’BLE MR.R.L.JHANWAR, JJ. Criminal Appeal No.30? of 2006 Arjun Yadav and others Versus State of Cattisgarh hh JUDGMENT FOR CONSIDERATION ‘ Hon’ble Mr.R.L.Jhanwar, J. Post for pronouncement of the Judgment on : 20l4l2011 Sd/~ T.P. SHARMA» ’1‘ fudge =3 I '"J;___.. E HIGH COURT OF CHHAT?ISGARH AT BILASPUR Division Bench:- Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.L.JHANWAR, JJ. APPELLANTS 1. (In Jan) Criminal Appeal No.30? of 2006 Arjun Yadav, son of Chhannu Yadav, aged about 6O years. 2. Saakhan Yadav alias Sakhan Yadav, son of ’Arjun Yadav, aged about 32 years. a f 3. Raghubir Yadav alas Ballu Yadav, son of Arjun Yadav, aged about 22 years. AII residents of Larapara, Police Station Kota, District Bilaspur Versus RESPONDENT .State of Chhattisgarh, through the Police Station Kota, District Bilaspur. (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Mr.Pramod Verma, Senior Advocate with Mr.Vivek Shrivastava, counsel, counsel for the appeiiants. Mrs.Madhu Nisha Singh, Panel Lawyer for the State/respondent. Q JUDGMENT (Delivered on 20‘ April, 201 1) The judgment of the Court was delivered by T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 22.3.2006 passed by the 10th Additional Sessions Judge (F.T.C.), Bilaspur in Sessions Trial No.147/2005, whereby & whereunder learned 10th Additional Sessions Judge after holding the appellants guilty for commission of cUlpable homicide amounting to murder of Ghanshyam Sahu in sharing common intention convicted them under Section 302 read with Section 34 of the l.P.C. and sentenced to undergo imprisonment for life and fine of Rs.500/-, in default of payment of fine to further undergo R.l. for one month. i Conviction is impugned on the ground that without there being any iota of evidence‘ the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. As per case of prosecution, on the fateful day of 25.12.2004 at about 7.30 at morning when deceased Ghanshyam Sahu went for ease near pond and his father Puniram (PW—1) was accompanying him, all the appellants came, they were holding sticks, they assaulted Ghanshyam and caused fatal injuries over his head and other parts of the body. Puniram (PW-1) and other villagers rushed to the spot and hnally they took the injured Ghanshyam to hospital at about 9 a.m. and Ghanshyam succumbed to the injuries. Father of the deceased i.e. Puniram (PW-1) lodged F.l.R vide Ex.P/1 and merg vide Ex.P/2. lnvestigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/5, inquest over dead body of deceased Ghanshyam was prepared vide EXP/6. Spot map was prepared vide Ex.P/3. eBloodstained and plain soil were recovered from the spot vide EXP/10. Dead body was sent for autopsy to Community Health Centre, Kota where Dr.K.K.Airi (PW-9) conducted autopsy vide; EXP/19 and found following injuries:- (i) Lacerated wound over right tempo-parietal region of 2" X ’yzu X ’yznl (ii) Seven bruises over back of 6” x 3", 2" x 3", 4" X 3", 4" x 3”, 3” X 1”, 2" X 2" and 4” X 3" dimensions. (iii) One lacerated wound over right ankle joint of 1" X 1/2” X 1/2”. (iv) One lacerated wound over left knee of 2” X 1/2” X 1/2” (v) Bruise over right thigh of 4” x 2". (vi) Blood oozing from left ear. (vii) Fracture of right partial temporal bone. Membrain of brain was ruptured and congested. (viii) Fibia of both legs was found fractured. Cause of death was coma and death was homicidal in nature. Sticks were recovered from the appellants vide Exs.P/7 to P/9. Bloodstained lungi was recovered from appellant Arjun Yadav vide Ex.P/11. Patwari prepared spot map vide EXP/18. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) and after compietion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned 10m Additional Sessions Judge (F.T.C.), Bilaspur received the case on transfer for trial. ln order to prove the guilt of the accused/appellants, prosecution has examined as many as eleven witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded inno‘cence and false implication in the crime in question. The appellants have also examined defence witness Gangaram Sahu (DW- 1) who has deposed that he was informed by father of deceased Ghanshyam namely, Puniram that Ghanshyam has been killed in the field of Janak. He alsoreached to the spot'and Ghanshyam was died. They brought dead body of Ghanshyam to Police Station. Virtually he has not deposed anything in favour or against the prosecutionsor,‘ defence. After providing an opportunity of hearing to the parties, the 10m Additional Sessions Judge (F.T.C.), Bilaspur has convicted and sentenced the appellants as aforementioned. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. Learned counsel for the appellants vehemently argued that in the present case they are not disputing homicidal death of Ghanshyam as a result of fatal injuries, but the present appellants have not caused any injury to Ghanshyam. Evidence of solitary witness Puniram (PW-1), father of the deceased, does not inspire confidence and trustworthy and is not safe to rely in absence of corroboration from independent sources. Evidence of eyewitness Anjoriram (PW-7), Maniram (PW—2) and Ramratan (PW—4) before whom the deceased has made dying eclaration do not inspire confidence and trustworthy and their evidence are not safe to rely. Learned counsel further argued that (if? d even otherwise prosecution was under obligation to explain that how the appellants have caused fatal injuries and was what the common intention of the aforesaid appellants, but in the present case prosecution has not explained and specified that out of three appellants who has caused fatal injury upon the head of the deceased sufficient for his death and what was the common intention Of the appellants, whether their intention were causing simple injury or grievous injury or i to teeth lesson to Ghanshyam or their intention were causing homicidal death not amounting to murder of Ghanshyam. They were holding bamboo sticks common object use by the villagers in the ordinary course of nature, they were not armed with fatal or dangerous weapons: Except one injury found over the head all injuries were found over back of the deceased which reveals that at the time of causing injuries except‘one injury over head the assailant has taken proper precaution in causing injury over vital parts shoWs that they have not caused any injury for causing homicidal death not amounting to murder or amounting to murder of the deceased, therefore, if the evidence of the aforesaid witnesses are considered as gospel truth, then in absence of any proof of offence and the fact that who has caused alleged injury over the head of the deceased, case of the appellants squarely falls within the ambit of Section 325 read with Section 34 of the l.P.C. 9. Learned counsel placed reliance in the matter of Sarman and others v. State of Madhya Pradesh1 in which the Supreme Court has held that in case of common object prosecution is required to establish common object of unlawful assembly and if any member of assembly *3— has exceeded the common object and acted on his own, it would be his individual act and other would not be liable the act exceeded by such member. Learned counsel further placed reliance in the matter of i l & Z\ j; Nadodi Jayaraman and others v. State of Tamil Naduz in which the Supreme Court has held that in case one head injury found to be sufficient to cause death in the ordinary course of nature and so many injuries are simple, prosecution is required to prove the exact nature of 1AIR 1993 SC 400 /2 1992 Supp (3) scc 161 \ s @ injury caused by the appeliants and who has caused such i J’ , and in case after failing down the deceased no further assault has been made by the appeiiants, then it can be inferred that the appellants were not having common intention to cause death or has likely to cause death or their act was likely to cause death or to cause such bodily injury as was likely to cause death. The Supreme Court has further held that in cases, where large number of persons are involved and in the commotion injures are caused to the prosecution witnesses and others, it becomes the duty of the court to determine the common intention which could be attributed to those accused who stand convicted, where some of their co-accused stand acquitted. Learned counsel also placed reliance in the matter of Mohinder Singh and another v. State of Delhi3 in which the Supreme Court has held that prosecution is required to prove Common intention of the appellants if they are more in number and to prove that in sharing common intention one has caused such fatal injury sufficient for causing death of the deceased in the ordinary course of nature. ln‘ absence of prove of common intention the person who has not caused fatal injury cannot be convicted for the offence of culpable homicide amounting to murder. Learned counsél relied upon the matter of Gajjan Singh v. State of Punjab" in which the Supreme Court has held that the appellants came together armed with rifles were not sufficient to indicate that they had come having shared a common intention. 10. On the other hand, learned State counsel supported the judgment impugned and argued that evidence of eyewitnesses Puniram (PW-1), father of the deceased, Anjoriram (PW-7), Maniram (PW-2) and Ramratan (PW-4) before whom the deceased Ghanshyam has made dying declaration are sufficient for drawing inference that only the appellants have caused homicidal death amounting to murder of Ghanshyam. This is not a case while the appellants were going towards for their work and incidentally the deceased met in a way then they have assaulted him, but in the present case at about 7.15-8 a.m. when the persons busy with their personal work, the appellants £ 3AIR 1975 sc 1506 4AIR 1976 SC 2069 assembled and went near the pond where deceased Ghanshyam had gone for ease accompanied by his father shows that Ghanshyam and his father Puniram (PW-1) were having sufficient apprehension that on account of previous quarrel the appellants may kiil Ghanshyam, thereby father of deceased Ghanshyam was accompanying. The appeilants were having definite knowiedge that at morning time the deceased wili go out for his house and that will be suitable time for hnish of his life. With intent to kill Ghanshyam all the appellants went to the spot with sticks and have assaulted Ghanshyam when he was in helpless position and even he was not able to save his life by escaping fromghe spot or using any object. Head injury and other injuries found over othe‘r parts of the body shows merciless act of the appellants in causmg homtcrdal death of the deceased The aforesaid Circumstances are suffICIent to establish the fact that there was mitigating of mind of the aforesaid appellants and the appellants were havmg only intention to kill Ghanshyam and in sharing common intention all the appellants have caused injuries resulting into death of Ghanshyam. ln these circumstances, prosecution was not under obligation to prove the common intention of the appellants. 11. ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 12. In the present case, homicidal death as a result of fatal injury found over the head of deceased Ghanshyam has not been substantially disputed on behalf of the appellants, even otherwise, it is established by the evidence of PW-9 and autopsy report Ex.P/19. Death of Ghanshyam was homicidal in nature. 13. As regard the complicity of the appellants in crime in question is concerned, conviction is substantially. based on the evidence of eyewitness Puniram (PW-1), Anjoriram (PW—7) and dying declaration of the deceased made to Maniram (PW-2) and Ramratan (PW-4). As per evidence of Puniram (PW—1), on account of previous quarrel with the appellants at the time of incident he went with his son Ghanshyam near the pond. At the time of ease of Ghanshyam he was waiting his son near the bond, suddenly Ghanshyam shouted for help aka a? HR W 7@ E's, then he saw the appeHants who were holding sticks were assaulting his son Ghanshyam, he requested the appellants that Ghanshyam is his only son and do not kill him, but appellants Ballu and Sakhan are rushed towards this witness, then he requested Brinda and Panchu who were also present on the spot to save his son, but they told that how they can save his son at the risk of their life. Appellant Ballu assaulted his son by stick over his head and caused substantial injury, thereafter other appellants have also assaulted, he shouted for help, then villagers came to the spot and the appellants escaped from the spot. They brought injured Ghanshyam to kitchen garden, thereafter aftgrfarranging tractor they took Ghanshyam to Police Station Kota along with Ramratan, Maniram, Baliram and other persons. Police Officers immediate directed him to bring the injured to hospital, they took tghe injured'to hospital where ultimately Ghanshyam died, then he lodged F.l.R. vide Ex.P/1 and merg vide EXP/2. 14. Anjoriram (PW-7) has deposed in his evidence that he has gone near Dabri pond where he heard sound of assault of stick, then he saw the incident, at that time the appellants were assaulting Ghanshyam by ' sticks and he was struggling for his life. The appellants were causing injury to him. Binda Yadav, Shankar Yadav and Panchram were also present there. Father of the appellant was shouting for help, at the same time, Panchram, Binda and Shankar Yadav rushed from the spot. Ghanshyam was badly injured. Other persons took Ghanshyam to village. Defence has cross-examined this witness at length. He has denied the suggestion in para 1O of his cross-examination that on previous night at about 10 p.m. quarrel took place between him and Ghanshyam. He has also denied the suggestion that on account of previous quarrel he along with his brothers haVe killed Ghanshyam. In para 11 he has denied ‘enmity with appellant Arjun. ln his detailed cross-examination, he has specifically and substantially deposed that he has seen the incident that all the appellants assaulted Ghanshyam by sticks, they have mercilessly assaulted Ghanshyam and have broken limbs of Ghanshyam. Other persons rushed from the spot. @ Nobody was in a position to save or try to intervene the incident on account of regular and mercilessly assault by the appeiiants. Defence has cross—examined Puniram (PW-1) in detail. ln his detailed cross-examination he has very specifically and categorically deposed that these appellants have mercilessly assaulted his son Ghanshyam and have caused repeated injuries. His evidence nnds support from the evidence of Anjoriram (PW-7) and promptly lodged F.l.R. Ex.P/1. As per evidence of Manirarn (PW-2), after hearing the sound of Ghanshyam he reached to the spot along with other persons where he sayypody of injured Ghanshyam, being asked Ghanshyam made dying declaration that the present appellants have assaulted him by sticks. Ramratan (PW—4) has substantially corroborated the evidence of Manir$am (PW-2)'relating to dying declaration made by the deceased. There are some discrepancies, omissions, contradictions and exaggerations in the evidence of these witnesses with their previous statements Exs.D/2 and D/4, but they have categorically deposed that Ghanshyam has made dying declaration. Evidence of dying declaration and when dying declaration is proved to be true, then same are“- sumcient for conviction of the accused persons. 17. Evidence of eyewitnesses Puniram (PW—1) and Anjoriram (PW-7) also find support from dying declaration made by the deceased. Puniram (PW-1) is father of the deceased and he is relative witness, but his evidence cannot be discarded only on the ground of his relation. Even otherwise, relative would be the last to screen the real culprit and falsely implicate an innocent person. 18. Evidence of Puniram (PW-1) corroborated by Anjoriram (PW—7) and factum of dying declaration made to Maniram (PW-2) and Ramratan (PW-4) are sufficient to establish the fact that the present appellants have caused injuries to Ghanshyam and Ghanshyam succumbed to the injuries caused by the appellants. 19. As regard the question. of motive is concerned, in case of direct evidence motive losses its importance, even otherwise, motive is only aid in criminality and can be inferred on the basis of nature of injury, 15. @ kind of weapon used, part of the body effected and other similar circumstances. 20. Common intention is_ an intention of more than one person for commission of act or series of act. The common intention implies acting in concert, existence of a pre—arranged plain which is to be provedf '- either from conduct or from circumstances or from any incriminating e facts. While dealing with the question of common intention, the Supreme Court in the matter of Ramashish Yadav and others v. State of Bihar5 in which the Supreme Court has observed in para 3 as under:— “f “3 .............. Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating g the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common Ja- intention implies acting in concert, existence of a pre- arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. lt requires a pre—arr‘anged plan and it presupposes prior concert. Therefore, there must be prior meeting of mindsf"; The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. lt can also be developed at the spur of the moment but there must be a pre—arrangement or premeditated concert ........ " 21. While dealing with the question of requirement of proving the nature of common intention, the Supreme Court in the matter of Nadodi Jayaraman and others (supra) has observed in para 16 as under:- “16. in cases, where large number of persons are involved and in the commotion injures are caused to the prosecution witnesses and others, it becomes the duty of the court to determine the common intention which could be attributed to those accused who stand convicted, where some of their co— accused sand acquitted and thevState chooses not to file any appeal against their acquittal. With a view to determine the common intention, the nature of injuries, the background of the incident and the nature of the weapons used to cause the injuries besides other factors are required to be properly considered and appreciated.” 5AIR 1999 sc 3830 g.g 22. In order to convict the appellants under Section 302 or any other substantial offence with the aid of Section 34 of the l.P.C. the prosecution is required to prove common intention of the persons for causing such act and common intention can be inferred on the basis of nature of injury caused by the appellants and their act attributed. 23. As held by the Supreme Court in the matter of Mohinder Singh and another (supra), prosecution is required to prove the fact that in sharing common intention with co-accused other accused has caused murder of the deceased, conviction of the co-accused under Section 302 with the aid of Section 34 of the .P.C. was not found sustainable. ‘I‘hé Sureme Court has observed in para 3 as undr:- “3.We are, therere, of opinion that while Umed Singh has been rightly convicted of the offence of the murder of Daya NaMohinder Singh could not be so convicted unless it could be stablished that he shared a comon iention with Umed to cause the death of Daya Nand or at least to cause such injury as would lead in the usual course of nature to Daya Nand’s death. We are not persuaded that the three men who are invoed in the occurrence we there with the intention of causing Daya Nand’s death though there is evidence tat they said they would kil him. That is probabl: an exaggeration. lfthe intention ere to kill the wrong side o the axe would nt have been used. While the knowledge that the inury he was causing wold in the ordinary course of nature lead to Daya Nand’s death might be attributed to Umed Singh, it is not possible to attribute such knowledge to Mohinr Singh.‘ It is not, therefore, possible to ascribe to Mohinder Singh common intention along with Umed Singh to cause to Daya Nand such injury s would lead in the orinary course of nature to his death. We are, therefore, of opinion that Mhinder Singh cannot be convicted of murder of Daya Nand under Section 302 l.P.C. read with Section 34. The result would be that he could be convicted only of causing hurt or at the most of grievous hurt to Daya Nand. We would, therefore, allow his appeal in part and convert the sentence passed on him to one under Section 325, l.P.C. As he has been in prison since shortly after the occurrence the sentence will be restricted to the period already undergone. He is directed to be released forthwith. The appeal of Umed Singh is dismissed.” 24. As held by the Supreme Court in the matter of Gajjan Singh (supra), mere armed with rifle and causing injury by one person is not sufficient to prove common intention of other. \ \ l l p e fo ndr e m nt lv nt h l y w f o j u de a a d o 11 . While dealing with the question of common object, the Supreme Com in the matter of Sarman and others (supra) has held that in case of member of unlawful assembly exceeded common object of the assembiy, then it would be his individual act and other are not liable with the aid of Section 149 of the l.P.C. . The SupremeCourt has observed in para 5 as under:- 5 ......'....The prosecution case in general is that all of them were found with lathies. Nobody has stated that which of them caused the injury No.15 which unfortunately resulted in the death of the deceased lf anyone of the appellants had exceeded the common‘objec't and acted on his own, it would b in t e his dividual ac. ln this case unfortunately no witness has come forward as to which of the accused has aused which injury. In these circumstances we find it difficult to award punishment under 8.302/149, IPC.” . Whil dealing ith the question of applicability of Section 34 i.e. common intention, the Supreme urt in the matter of Pipal Singh v. State of Punjabs has held that with a view to determine common intention, the nature injuries, background of the ncident and the nature of weapon used to cause the injuries besides other factors are needed to be considered. The Supreme Court has observed in para3.‘ as uner:- “3. Even where some out of several accused are acitted it is open to the cour to consider whether the remainin t g accused were gulty of an offence by involving Section 34 IPC by reason of having committed the offence along with others acquitted With a view to etermine ommon intention, the nature of injuries, backgroun of the incident and the nature of weapon sed to cause the injuries besides other factors are needed to be considered. There is no principle in law wich preven from adopting that course set