p- \\'^ CF0000064217 IN THE HIGH COURT OF JUDICATORE AT JABALPURsM.P, ^ Q-iaiaal Appeal No of 2000 iK> '' c^ ".^ .. ~^/ ^y.^/. 'y^Wi --"/^yy ^ !\..7 ,/..-^ ' v'y' ^ Devanand Dubey,aged 41 years, Sc» of RaaashaiA.ar Dabey, Occupa-tion: Non-Medical Assistant Ooiamunity Healtb centre, isturi, QiLstt .Bilaspur, (H.P.) . VERSUS APSELLANT ('7n 3'<u)) '^, ~'~ -. '"*'.. \.^^s" ^-.J'-L^ State of Madbya Eradesh. RESPONDENT /" CE.ITONAL AEPEAL UHDER SECTION 574(2) OF THE CODE OF CRIHINAL PROCSDURE. HIOH COURT OP CHHATTISGARH. BILASPUR D.B: HOH'BLB 8HRI L.C. BHADOO, J HON'Bt.E 8HM 8UNIL KUMAS. 8INHA, J Crimiaal Aooeal No.l840/20< Devanand Dubey State of-'Madhva Pradesh (now Chhattisgarh) ft. EsM..:- "••Sii.i Crimina! Appeal No.1679/2000 Daso alias Rrainesh Dubey Vs, State of Madhya Pradesh (now Chshattisgarh) Jui^gment forconsideration Sd/- Judge Hon'ble Shrl Justice L.C. Bhadoo Judge Sd/- L.G.Bhndoo Judge PostforJudgment: 2-102.2007 Sd/- Sunii Kumar Sicha Judge HIOH COVKTOF CHHAmSGARH. BILASPUR DB: Hoa'ble Shr! L.C. Bhadoo, J Hon'ble Shri SunU Kuuai Siaha, J Qrjmiaal ApBeal No.1840/2000 Devanand Dubey ', Vs. State of'Madhya Pradesh (now. Chliattisgarh) iii;: &im!aa| Apoeal No.1679/3000 Daso alias Piamesh Dubey Vs. State of Madteya Pradesh (now Cltttattisgarh) Shri Surendra Singh, Sr. Advocate witti Shri N.K, Mehta, couusel for fhe appeUaats., Shri U.N.S. Deo, and Shri Ashish Shukla, Addl. PubUc Prosecutors, for fue State. Dr.N.K. ShuMa, Sr. Advocate witfa Shri A.K. Yadav, for the objector, wife offhe deceased. JUDeBMBNT ( 2Z.02.2007) Per Saail Kamar S!sha. J (Ij Since both these Criininal Appeals are arisicig oiit of judgment ofconviction and order of sentence dated 21.6.2000 passed in Sessions Trial No.359/1998 by the First Additional Sessions Judge, Bilaspur, fherefore, fhey are being disposed of by fhis conunon jiidginent. (2} Criminal Appeal No. 1840/ 2000 has been filed on behalfof \ accused appellant Devanand Dubey whereas Crinunal Appeal 'w r' No. 1679/2000 has been filed on behalf of accused appenants Daso @ Pramesh aad Dayanand Dubey. Daso @ Pramesh has been convicted u/ss 302 & 450 IPC aud sentenced to undei^o imprisorunent for life aihd to pay a fine ofRs.l(X)0/-, ia default of payinent of fine to fiirther undei^o R.I. for 3 months and 7 years R.I., and fine ofRs.1000/-, ia default ofpayment offine to furfher undei^o R.I. for 3. inonths respectively. His sentences have been directed to run concurrentiy. AppeUants Devanand Dubey and Dayanand Dubey have been convicted u/s 302 read with section 34 of IPC and seatenccd to undei^o imprisonment for life and to pay a fine &f Rs.1000/- each, m-default of payment offinc to furfher undergo R.I. for 3 months. (3j The case ofthe prosecutioff ia that the deceased Surendra Kumar Sharma was fhe tenant of one Jhumafclal Dubey and was holdiag the possession of his tenanted shop situated in Sarkanda, Bilaspur. -Jhuinaklal Dubey wanted to get his shop vacated and for fhis, requisite proceedings were filed iii the Cvril Coiut and fhercaft:er, fhe appeal was ffled in the High Court and the matter was decided ia favour of the tenant Surendra Kumar Sharma (since deceased). On this groiind the relations between fhe parties were inimical. The accused persons are the relations oflandlord Jhumaklal. On 17.4.1998 at about 4.45 p.m., all the accused appeBants entered nito the tenanted premises of the deceased Surendra Kumar Sharma, accused appeflant Daso @ Pramesh Dubey assaulted fhc deceascd wifh a knife causing injuries on his vital parts. The aUegations against two other Y accused paraons are that they had exhorted the accused "^,^ ^' appellant Daso for -committing inurder of fhe deceased. The further case of tfae prosecution is that at that time, Arun Dubey (P.W.l), servaat of the deceased and SmtPushpa Sharma, wife of the deceased antf one SmtMeena Sharma (P.W.4) had witnessed the incident. The incident was reported to fhe PoKce Station, Sarkaada on 17.4.1998 by Telephone, which was reduced into writing in Rosnamcha Sanha No.999 Ex.P-20. Receiving such infonnation, the Town Inspector left for the scene of occurrence. The deceased was taken to the hospital ivhere fhe Town Inspector asked hun abouf fhe incident and recoried Dehati ffcilhhi Ex.P.22. This Defmti Natishi WSB- signcd by Surendra Kumar Shanna, tfae deceased himself, based on which, the Pirst Information Report was lod^d imder Ex. P-14, 7 Requisition for medical examination ofthe victiin was prepared and his injiuy report was obtaiaed vide Ex. P-10. The 161 slateinent of Arun Kiuuar Dubey was also recorded. The blood steined clothes of the deceased i.e., full paat, shirt and underwear eto., were seized under Ex. P-3. The servant of the deceased namety Arun Kum.ar Dubey ( P.W.l) was sent for medical exaaunation under Ex. P-24 and his medical report Ex. P-19 was recewed. The samples ofblood stains were taken fiom^fhe chair in the shop under Ex. P-25. Sife Plan was prepared under Ex. P-26. Accused appeUant Daso @ Pramesh was taken into custody on 6.5.1998. His memorandiun u/s 27 of fhe Bvidence Act was recorded under Ex.P-4 regardiag the weapon of ofience and at his instance a Khukhri was recovered under Ex.P.5. CIothes offhe accused Daso were also seized froin rt y~- his house under Ex. P-6. For farfher treatment, the deceased was referred firom Govt. Hospital, Bilaspur to Bhflai Hospital, where he died during fhe course of treatmeut on 05.5. 1998. A merg mtunation in fhis tegard was sent by the concemed Doctor of Bhilai Hospilal-to PoKce station Bhflai, BIulauiagar, under Ex.P. 15, on which, the enqujry on merywaa conducted by Police Station Bhflainagar. The poncemed Polfce OflBcer of Bhilain^ar, gave notice to the Panchas under Ex.P.12 on 5.5.1998. The inquest on the body of the deceased was preparcd under Ex.P. 13 on fhe same day and fhe dead body of the deceased was sent for posttnortein under Ex.P.l^.- The post mortem was conducted by Dr. P.K, Agrawal and the report fhereof was prepared vide Ex. P-21, bed head ticket of BhUai f hospitel (Ex. P-2) was taken into possession and a seizure memo Ex. P.17 was prepared in this regard and the report regarding death of the deceased was recorded in Sarkanda Police Station, Bilaspur uader Ex.P-32 on 27.5. 1998. The Seized articles were sent for exainination under Ex.P-31 and a report fixim Forensic Science Laborato^, Sagar, was received under Ex.P.34. The Statements of witnesses were recorded and after completion of the investigation, charge sheet was filed in the Court ofJudicial Magistrate, First Class, Bilaspur, who in tum, oominitted the case to the Court of Sessions Judge, Bilaspur,fiom where the case was received on. transfer by the First Addl. Sessions Judge, Bilaspur, who conducted the trial. II1 (4} The prosecution,' in order to prove its case, exaiumed as inaay as 24 wituesses. Thereafter, thc stateinents of accused persons were recoided u/s 313 Cr.P.C., in which they dcnied the material appearing against fhem. Thc leamed Addl. Sessions Judge, after hearins the parties, convicted the appeUants as aforeiuentioned. », (5$ Leanied counsel for the ap'peBants has not disputed the homicidal death of the deceased. More over, the medical report of the deceased which was prepared by J3r.G.P.Naidu (P.W.10) on 17.4.1998 would show that on.the exainination ofthe victim in fhe hospitel at about 5.30 p.m., on the said date; he aoticed fhe following injuries :- (i) Au incised wound on rfhe right side of the chest at the position of II111 and 12th ribs (u) An iacised wound on the forehead in size of 3" x 1 w (ui) An iacised wound on the back portion of left hand in si%of4"x W (iv) An incised wound on fhe back portion oftfae head i.e., occipital region. (v) Aa incised wound on the right cheek in size of 3 xVa". The Doctor opined fhat fhe injuries were caused by sharp edged weapon. His report is Ex.P.10. The Surgical Specialist, Dr.Rajeev Ratan Tiwari (P.W.16) also stated that fhe following injuries were noticed by him and an entiy to this effect was made in the bed head ticket Ex.P-18 by his Junior Dr.K.K. Sao. ~ (i) An incMed wound at tfae right cheek in size of 3" x W __.d v (ii) An incised woiind at fhe front portion of fhe stomach in size of 2" x W (ni) One peaetTating wound ou the left side of the chest at fhe lower region in size of2 % x 1 (iv) An incised wound on the left haad in SUE of4" x W (v) An incised woiind at the back portion of tfae head sinaU size. (vi) Another incised wound at the back portion of the head. Accordiag to hiin, the patient was in senous condition, therefore, he had advised for munediate blood transftision. The uijuries were caiised by sharp edged and pointed weapon. Apart from this, the post inortem report of the deceased, Ex.P.21, would show that 4he cause ofdeath was septicemic shock and fhe duration was within 24 hours ofthe said examination, which was conducted by Dr.P.K. Agra^al (P.W.22) on 06.5.1998. In the said report also, fhe autopsy surgeon has recorded presence of as many as 6 extemal injuries and he has also recorded fhat fhe occipital, frontal and both parietal bones were fi-actured. He has noticed tfaat the lai^e mtestine of fhe deceased was repaired and puss was present beaeafh the left ribs. AU these reports are suggestive of fhe fact that the death of deceased was hoinicidal in naturc. (6) ~ So far as the involvement of fhe accused appeUants in crime in question is concemed, leamed Senior Couusel has mauily argued that ttie over aU case of the prosecution against ttie appeUaat Dayaaand and Devanand is that they have conie alongwith fhe main accused Daso @ Pramesh and Ifaey have >* been exhorting Daso to cominit murder of fhe deceased aad ia I, i .11,.,J- l.A !11. this manner, fhey have shared their common intention ia furtherance ofwlu.ch iniuder of the deceased was cominitted by Daso @ Prainesh, bnt fhe evidence regarding such exhortation is shaky aad untrustworthy, thereforc, fhe presence and exhortation atlegedty given by these two appeUaats^is doubtful and they be acqiutted by ^iviag benefit of doubt. So far as appellant Daso @ Prainesh is conceraed, leamcd Senior Counsel argued that he has already been released on probation, therefore, there is no necessity ofscruthuzing his case. (7} Be that as it inay, since we arc scrutinizmg the case of appeUaats Dayanand Dubey and Devanand Dubey, therefore, we also deem it appropriate to scrutinize the case of appellant Daso @ Pramesh. f (8j We have heard learaed Senior Counsel for the appeBants and leamed Additional Public Prosecutois for the State assisted by leamed Senior Advocate who has appeared on behalf of fhe Objector, wife offhe deceased. (9) The conviction of the appeUants is based upon fhe evidence of eye-witnesses namety Anm Kuinar Diibey (P.W. 1), Smt. Pushpa Sharma (P.W.2), Smt. Meena Sharma (P.W.4), Gopal^ingh (P.W.7) aiid Gopal Prasad Sahu (P.W. 11) supported 'bj the medical evidence and evidence ofdiscovex3r and seizure of various articles at fhe instance ofthe accused Daso @ Pmmesh. (10) Amn Knmar Duhey (P.W. 1) has stated fhat on tiie fateful day, he was present in fhe shop but the deceased Surendra Sharma was not in the shop. At that tune, which was about 3 p.m., one .taU maa came to the shop and catled Surendra Sharma. When Surendra Sharma came there, hc talked wifh TtiTn regarding the shop. Thereafter, the taB m.an went back and he alongwith fhe dcceased Siirendia Sharma were sitting in the shop. After some tiine; the same person agam came to the shop but at this fime, he was holding soine equipment with him aad he assaulted the deceased,,with fhe said eqiupment. When he uitervened he also received injuiy. Seeiag a!l this, he had catled fhe wife and materaal aunt of Surendra Sharma. Thereafter, people gathered there' and they were saying that Daso had assaulted. He has furfher stated fhat siace he had gone to catt these persons he could not say where the other iajuries were mflicted on fhe deceased, Surendia Sharma, afber receiyiag fhe first injuiy. On fhe above statement of this witaess he has f been declared hostile by (hc prosecution and lengthy cross examination was done by fhe State Counsel, but nothing pertaming to the ideatity of the accused Daso @ Prainesh and the presence ofother accused peraons could be esteblished by this witness. The trial Court has taken fhis view fhat this witness has only estabKshed fhat the ofher two witnesses namety Pushpa Sharma (P.W.2) and Meena Sharma (P.W.4) had also come to the spot and nofhing more, which also appeara to be reasonable to us. So far as appellants Dayanand asd Devanand are concemed, fhis witaess has stated vide para 6 of his cross examination by the State thathe had told fhe name of Daso to the poUce whfle giving his statement, but he has denied ttie suggestioa that at that tune, he had also told the names of Devanand and Dayanand sayiag ttiat they were standing at the doora and further fhat these two appellants, while standing on the doors, were not allowing the other peraoas to enter into the premises of tfae shop. However, as stated earlier, this witacss has supported fhe prosecution case to this extent tfaat wlule the deceased was being assaiilted, fhe wife of the deceased namefy Pushpa Shanna (P.W.2) ait3 his matemal aunt Meena Sharma (P.W.4) had witnessed fhe Said occurren.ee. (11) SmtPushpa Sharma (P.W.2) has stated in her evidence tfaat she knows the appelbnts as fheir shop was taken by them on rent. Her husband was a property dcaler; their house is situated just adjaccnt to fhe said shop. Arun Dubey was servant ia the shop. A dispute was going on regaTding vacating the shop since last 10 years asd they have won fhe case fioin fhe High Court. Prior to fhis incident, accused Dayanand and Devaaand had once broke open the lock of fhe shop sund the dispute has begun. The accused Dayanand and Devanand are uncles of accused Daso @. Pramesh. She furfher stated vide para 4 tbat on 17.4.1998 at about 3.45 - 4 p.m., her husbaad and brofher in law Brajesh Sharma were sittiag in tfae drawiag room. At that time Arun Dubey (P.W.l) came and caUed her husbaad sayiag that Daso has coine to the shop and he is catting him. On tfais, she, her husband and brother in law went to the shop where fhey saw Daso. Thereafter, there was some talk between Dasp and Siirendra Sharma about the shop. After some talks, it was said to thc deceased by Daso that the shop belongs to tus grand-father, the deceased should vacate it offierwise he wffl murder him- On all this, the deceased said 10 that he is a tenant and he has won the case from the Court and he is also paying fhe rcnt. After giving such fhreatening, Daso went fTom there, fhereafter, all of them. retumed back to the house and Brrijesh Sharcua has returaed to his own house. Just a few ininutes thei'eafter, the matemal uncle Devendra Shanna and matemal aunt Meena Shanaa (P.W.4) came to their hoiise. After two miniites, Devendia Sharma has gone back and Marm Meena Sharma was sittmg in the house. The deceased Surendra Sharma again went to the shop. After 10 ininutes, the servant Arun Dubey (P.W.l) caUed them saying fhat Daso Dubey is assaiilting Surendra Sharma (deceased). Heariiig" fhis, she alongwifh her matemal aunt Meena Sharma (P.W.4) rushed to tfae shop. She saw that Daso Dub^y was assaulting her husband aad other two appeDants namefy Dayanand aad Devanand were standiag near the doors of fhe shop. Daso was having a long knife. This witness has stated about the assaidts being given by Daso and she has also stated that at that tiine, these two appeUaats Dayanand and Devanaad were giving exhortations for giving naore beatmg. She has also stated that these two appellants had stopped fhem fiom entering into the shop. She has fuTfher stated that she requested Daso to feave her husband saying that she has smaB children and she wiB vacate fhe shop aad she will also give the money whatever is required by thein. She has stated about various assaulte being given b;r the accused Daso to her husband. She has furfher stated that after giviug such assaitlt by Daso, aU the appellants ran away fem :! t :i"i 1 .-i /A4) 11 fhe place ofoccurrence, thereafter, the nijured was taken to thc hospital. (12) Similar evidence has been given by P.W.4 Meena Sharma. She has corroborated P.W.2 Pushpa Sharma by saying that on a catl given by P.W. 1 Arun Dubey, she had also gone to (he shop alongwifh P.W.2 Pushpa Sharma and she had seen the accused Daso arcaed wifh a long knife and had also seen that Daso was giving repeated blows to Surehdra Sharma. She has also stated that at that time, appellaats Dayanand and Devanand were standing at the door and they were not atlowing tlrem to enter mside the shop aiid were exhorting to give more blows to the deceased. f {13} P.W.7 Gopal Smgh is the other eye-witness. He has stated that he does not know fhe accused persons or even the deceased but on the fateful day, when he was retuming to his house he saw a mob in fi-out of a shop. On this hc went to the shop aad saw that a stout man was assaiiltmg a person with a Bujali ffie weapon. Two peraons were standing at the Gate ofttie shop and they were trying to dis^erse fhe mob. The two persons,who werc standing at the gate ofthe shop were exhorting the fhird person saying "Daso kfll Surendia Sharma". He farther stated fhat these two persons asked the fhird peraon, who came from iaside the shop, as to whether hc (Daso) has kffled the deceased or aot? and ifhe is not kffled, he should go and kiU hJTn. He stated that the stout man ^ain entered into the shop and assaulted the deceased wifh the help ofsome sharp edged weapon. 12 (14} The other witness namely Gopal Piasad Sahu (P.W. 1 1) has also stated in the similar fashioa as P.W.7 Gopal Singh an.d has added that Daso assaulted Surendra Sharma with 12 feet long weapon. He has ftufher said that afier fhe assault, Daso fled fix>in Ifae place ofoccurrcnce on a Hero Puch two wheeler. Jlr;. (15) If we look into fhe evidence of fhese witnesses, it would appear that the evidence of P.W.7 Gopal Singh and P.W. 11 gopal Prasad Sahu are totaUy untnistworthy. They have developed a new story against the appellaats. They have not supported the version of P.W.2 Pushpa Shanria and P.W.4 Meena Sharma. Anofher reason for disbeUeving the testimony ofthese witaesses are that according to P.W.7 Gopal Siagh, his police statement was recorded after a Dionfh on 21°* or 22nd day which would fall on 2 Ist or 22nd of May 1998. Likewise, fhe poKce statement of P.W.ll Gopal Prasad Sahu was recoided on 2.6.1998 and such belated statements, which are completefy giving a new dimension to the prosecution case and are giviag altogether new veraion cannot be relied on. There was no reason with these witnesses not to disclose fhe stoiy at soine esacty stage and to keep quiet for such a long period. It is for fhese reasons; we do not place our reliance on fhe testimony ofthese witnesses. (16) So far as evidence of P.W.2 Pushpa and P.W.4 Meena is concemed, leamed Senior Counsel ai^ued that fhc veraion of tfaese two witnesses to the extent that they had seen the appellants Dayanand and Devanand exhorting the inain accused to assault the deceased Surendra. Sharma caniiot be relied on. The reason being fhat their such evidence arc exaggerations and 'A-- 13 are omissions ia their police stateinents recorded under Ex.D-1 and D-3. Not onty tfais, fhe factuin of exhortation by these appeUants is also not there in fhe Dehafi Nalishi Ex.P-22 recorded by fhe Town Inspector on fhe information given by the deceased hiinself on the fateful day itsetf. In this regard, he refera to a judgment offhe Kpex Court rendered in the matter of Jainxl Bawie -7s- iSttate ofBtheir, AIR 1974 S.C. Peiae4S. It has been held by the Apex Court ia fhe said judgment, vide para 8, that the evidence of exhortation is, ia the veiy nature of things, a weak piece ofevidence. There is qiute often a tendency to unpUcate some person in addition to fhe actual assailant by attributmg to that peraon an exhortation to the assailant to assault the victim, Unless the evi^ence in this respect be clear, cogent and reliable, uo convk'tion for abetaient can be recorded agsdnat fhe peison alleged to have exhorted the actual assailant. The Apex Court furfher held that fhe evidence adduced at the trial in respect of the part aUeged to have been played by fhe appeUant is contradictoiy and far fiom convincing and on that the coaviction of the appellaat was set aside and he was acquitted. (17) In the case on hand also, so far as evidence in relation exhortatiQn is concemed, admittedly that is an exaggeration made on the part offhese two witn.esses namely P.W.2 Pushpa Shanaa and P.W.4 Meena Sharma. Ifwe look into their 161 statcments which have becn marked as E^c.D-1 and D-3, it woiild appear that they have only stated that these appellants Dayanand and Devanand were present at the place of 14 occi.trrence and the deceased was assaulted by the main accused Daso aad ffaese two appeUants had entered iato fhe premises of fhe shop alongwifh inam accused Daso. As stated above, fhe exhortation parts are also not there in the Dehati JVaftsfa" which was recorded by fhe Town Inspector under Ex.P- 22 on fhe infonnation given.fiy fhe deceased. This Dehati ffalishi was signed by fhe deceased hims'elf. It onfy comes in fhe Dehccti Nalishi that these two appeUants had also accompanied fhe accused Daso while he entered uito his shop. Therefore, the stoiy of exhortation to assault jthe deceased which has been developed by these two witnesses i.e., P.W.2 and P.W.4 is apparently aa exaggeration and we are ofthe considered opinion that fheir vei^ion to the effect ^hat fhese two appeBants i.e., Dayanand aiid Devanand have exhorted tfae maiu accused to assaiilt fhe deceased, caanot be reBed on. Now fhe question arises about thc connction of these appeUants with the aid of section 34 of IPC, Section 34 has been enacted on fhe principle ofjoint Kabitily in the doing ofa crunmal act, The sectioa is oofy a rtde of evidence and does not create a substantive offence. The distinctive feature of fhe section is fhe element of participation in action. The Kability of one person for an ofence conumtted by anotber in fhe course of criminal act perpetrated by several persons arises under section 34 if such crimmal act is done in furtheiance of a cominon iateation of the persons who joia in committing the ciime. Direct prpof of cominon intention is seldom available aad, therefore, such intention caa oaly be inferred from the 15 ciTcuinstances appearfng Iroin the proved facts of fhe case and the proved cipcumstances. In order to bring hoiue the chai^e of coininon intention, fhe prosecution has to estabHsh by evidence, whether direct or circumstantial, that fhere was plan or meetmg of minds of aB the accused persons to conunit the offence for which they are charged ^itfa the aid of Section 34, be it prearranged or on the spur of the moinent; but it m.ust necessarily be before the commission of the crune. Thc true contents of the section are ttiat if two or more peraons intentionaUy do an act jointfy, the positioa in law is just the same as ifeach ofthem has doae it iadividuaUy by Umself. The existence of a cominon intention amongst the participants in a criine is fhe essential element for appKcation of this section. It f is not necessaiy fhat the acts of the several persons chai^ed wifh commission of an oflfeace jointly must be the same or identicaUy simflar. The acts