^ f' CF0000061340 ^one^^,^ IB IHS BISS GODBI W SSSJGSSmS, laDBtt. iBADBSH AT •I&SAU'OR CBJMIUI. AKEtI, N0. \ °)^7 ® 1997 X» ^s.^^sQ.f 3fy& of Blw^i^Bii Yjftd&'v^ ^ ' //'r-;' aged $1 yaaars^ '' r^^ $8 ^?'2* ROM* r<ui»'soa oj? Bbojraa Xlidav, tjT-5-37 ,. aged 33 ysars, .. ... /A-'T^' .b iA-'b?'^^ Beth eultlTatws and residaata of fWvoca1- vlllage Bltfaill, PoUce Statloa ^"?* Saepat, Dlstartet BUaspitf. 8LA.R. ' ..Affisuuiras 1TB8SBS ' irf?«««y11/"' • pe ?iata <tf Madhya R-adasb, .M^ ' ' / ^'~C1,A'")'SU^' v ^ «.^@KMBMI >>»<**1* ^e.1 '»,».' WSSESSL JUffiS&L VaSBt SBGTIOB 37!*(2) CF THE GOBB 0- (StTKJMS. SBlOGBBOaS •• / B--. ..y' XI-HC-22 .ai&ff ?>T f?;n?i.an^r ^WN'^EfttT '3^'^ffqRTq, 'SrftWTs, islflKiy NiqwrshTn^ __G2C..6..:.I3.32./3 ^^' ^ sn^i ^giw ^rlN DIVISIONBENCH: HON' & HON'I ?LE SHRI L.C.BHADOO ^LE SHRI DHIRENDRAMISHRA, JJ CRIMINAL APfl^L N0.1937/1997 Applicant Ji V: Respondsnts Stjate Of Madhya Pradesh Shri Neeraj Mehta learned cofjnsel Shri Akhil Mishra, learned P.1 Prosecutor for the respondent/Statej ORAL J Per L.C. Bhadoo.J (03.0 By this appeal, accused/a|] questioned the legality of j|i sentenc&dated 27.08.1997 Judge, Bilaspur in Sessions] Additional Sessions Judge guilty for commission of (he Sections 302/34 and 323/341 accused person to undergo) year respectively on both cpL|nts ^OTferih tni@f M -fei^ •^SK ^siPgHsn^! . ilal & Another fortheappellants. . andShrrAshish Shukla, Addl. Public DDGMENT 1.2006) ipellants Jailal ,& Rohit Ram have jlydgment of conviction and order of f^assed by learned AdditiQnal Sessions Triaf No,'336/1991 'whereby learned |ifter holding the accused appellants (he offences convicted them under lof the IPC and sentenced eaeh of the imprisonment for life and Rl for one [Tft^ ^a^ XI-HC-22 'TSf ^qraRTq, '^ftff'13, iWiray ^ sn^iqa •RW; 311^1 »i'u'stiVSsS wwn E(!«^c^r:,^,.[3.S7A2= 1% . 280 sn^i WITW: ^8f?g <<iHWH 'tWi^ ^ fe^-rfiR?R •^? 3TP(PT 31!^( 2. The caseof the prosecution First Information Report in pojj at about 2,45 p.m. to theeffect at 9.00 p.m. there was a thrashing fietd of the decease<J Bhojram and Udayram. Ourin^ Jailal Yadav and RohitYadav Jailal picked up a wooden clu(> Rohitbrpught a lathifrom his Udayram on which hetried to| on the left side of his neck |n brief is that injured Lateai made a jjpe station Seepat on 31 May 1991 that a day beforethereto in the night Ffanchayat of the eommunity in the as therewas some dispute between that periodspnsof Bhojram namely ^ppeared on the scene ofoccyrence. ' which was flxed^n'the ground and tfouse andthey were prepared to beat lintervene and on this Jaiial attacked on his left forearm.By the 'third time he assaulted hiiTJ he fell down. Jailal and Rohit By that time his son-in-law attacked him also on his headl Yadav came there Jailal also chest. Accused Rohit assaulfed House Qfficer, on the bas( Information Report (Ex.P/22) f^r Sections 307 and.323 readwiih investigation. Injured persons and Jagmohan were sent f()r Hospital, /Bilaspur where G.Venkqtesh (P.W.10) and i4ju withthe wooden club..He also attacked tin1e pther persons could intervene, W on hishead andasa result ofwhich ^/ere saying that Tinish fhis old man". rjamety Daduram came there, Jailal with wooden club. When Jagrhohan 4ttacked him with wooden club on his R4unudai with lathi. The Station |s of this report, regisfered First commission of the offences under Section 34 ofthe IPC and took up |namely, Lalsai, Munudai, Oaduram medrcal examination to District jnjuries were examined by Dr. reports Ex.P.23,24,25 and 26 ir(jury ['qt^ ^ta^ i S- ' •B; XI..HC-22 sn^i'^1 f^iRT 311^1 g7tiN?'Hl%3 3. -^sf ^M\v\<i, ^ww, l^trey wwri .&<o--A...../J.37/3.." K.K. were prepared. However Jai| succumbed to the injuries bpdy was conducted by Dr. report EX.P.12 was preparecf. mortem found that therewasl inch on ttie vertex Ofthe as well as the right parietal i)ej was foundclotted in his extral as a result of head injury whi4h ordinary course of nature. |al wasadmitted in the hospital who sijisteined by him. Post mortem of the ;.Sad (P.W.16) andthe post mortem |. The doctor who conducted the post |a laeeratedwound in the size of 2x1 and humorous bone of 16ft hand ijegion was found fractured and blood [dural part. Cause ofdeath was coma was sufficientto cause death in the dec^ased durihg The Investigating Officer wooden club used by Jailal of offence in the crime inl investigation, the charge and Rohit in the Court o1 committed the case to Additional Sessions Judge ahd Sessiohs Prosecution in order to estatllish appellants examined as majiy accused persons were also Code of Crirainal Procedure. and stated that they have Oeeh ^ /^ •SRpfefrttiItRR •?fS^t lte5I1 %3lPOT3I^( investigation took into possession lathi used by Rohit as the weapon questioh. After completion pf the was filed againstthe accused Jailal Judicial Magistrate, Bilaspur who Judge Bilaspur from where learned the case on transfer for trial. redeived the charge against.the accused/ as 16 witnesses. Statements of Irecorded under Section 313ot the |They denied the case of prosecution falsely impiicated in thecrime. . [4^^Rg^ , XI-HC-22 ~s~^ -'IHH'4, »fl1'y'i6, istcii+iy SIR^I^I f^iwsn^i WEiW^rft^ Wl-RW^iWqi^^^^ ^ an^i'^aiwgltg 5. 6. ^iAii"i'41i ^i<-i<?il'^1^^ ^•3if;tFT3TI^I Learned Additional Sessionii Additional Public Prosecutcjr conviGted and sentenced paragraph one ofthis|udgiT)ent As far as case 6f accused Additional Public Prosecutcjr the effect that Jailal had Bilaspur while undergoing from Central Jail, Bilaspi^ appeal has been filed by th^ theappeal fited by accusedf this effect be sentto Sup< information and necessary ^ction. Pailal is concerned, Shri Ashish Shukla, submitted a written communication to ^xpired on 28.11.2004 in Central Jail, jentence as per the information received 1-. No application for prosecuting this ^ legalheirs of accused Jailal, therefore, IJailal stands abated. An information to srintendent of Central Jail, Bilaspur for Counsel for the accused/sl Lalsai as homicidal in natu) P.W.16, Dr. K.K.Sao who the deceased it is establisht • Lalsai died on account ofl medical evidence stands Anantram, P.W.3 Munuda) P.W.6 Mohanlal who witne^ that death of Lalsai was >•• l^ js Judge after hearing fhe arguments of and counsel for the accused persons |he accused persons as mentjoned in jppellants did nqt dispute the death of te. Apart from that from the evidence of ci?nductedthe postmortem on the body of ishfed that death was homicidal in nature as |the injuries received on his head; The torroborated by the evidence of P.W.1 P.W.4 Jagmohan, P.W.5 Daduram ^ ^sed the crime, therefore it is established hotnicidal innature. [^ife^ XI-HC-22 "S^ -^MW^, 'S^tWTS, 'toP QTrrt.ig37^M an^-qii •f^'iwsn^i STqWffl^a sn^is^itWHfer »bl<4fc'l'Iil-<W^ ^ 'fs^t ^f^^R ^arfigHsn^ 8. 9. Now so far as ihvolvement W accused Rohit in the commission of murder of Laisai is concern^d, counsel for the accused/appellants argued that First Informatioi] else than the injured Lasai 1| R6port Ex.P.22 was lodged by none imself in which he had not slated that Rohit attacked him. He :f^rther submitted that except P.W.1 Anantram none of the othejr eyewitnesses has stated that Rohit assaulted Lalsai, thgrefore^vidence of Anatrtram 4s not supported even by the dying declarati|on ,raade by the deceased ahd other injured witnesses. On the other hand, Mr. Akhi| Mishra, Panel Lawyer and l\4r. Ashish Shukla, Additional Public. prosecutor sypported the impugned judgment. 10. In orderto appreciate.the ai parties we have perused tt deceased Lalsai in which ti 'guments advanced by counsel for the le First Information Report lodged by e has categorically stated that all the injuries were caused by Jajlal on his head and hand. hle further stated that Rohit assaulted l^lunudai pnly. P.W.2 Udayram who was an injured witness has catejorically stated in first paragraph of his evidence that in his presejnce Rohit has not~ assaulted Lal^i. Similariy Munudai P.W.3 to club has not stated anythi assaulted Lalsai whereas sh \?. Jailal/assaulted Lalsai <3n h I-aliai fell down. Eveh P W. Whom accused Rohitassaulted with ng to the effect that accused Rohit ^hascategoricallystatedthataccused s head with club as aresult ofwhich 4 Jagmohan has notstated that Rohit [Trty'^gT^ XI-HC-22 TSI ^ipfRpi, riTTl'y'iis, ' iray 3'1^1'S TC^snl^T ^ii^^ft^ 1, / c^^a,.[ 6 311^1'reiIWgft^ 11. Jagmohan whereas Jagmo^ qiPlfepftTlireff'^ fe^t <i"l^l< ^aiiPgtisn^r assaulted Lalsai. P.W.1 Anahtram has stated that Rohit assaulted an P.W.4 has not stated that Rohit assaulted him, therefore, in MieWofabove evidence the evidence of P.W.1 Anantram appears to|be exaggerated as against Rohit that Rohit assaulted Lalsai. The|-efore to this extentthe evidence of PW-1 Anantram cannot be b^lieved for the reason thateven injured Lalsai and other eyewitness^s have not corroborated the evidence of PW-1 Anantram. Now s6 far as charge ui|ider Section 302/34 ofthe IPC is concerned, inorder to attra<;t the provisions bf Section34 of IPC in respect of accused, Jhe action. The liabilify of one another in the course of furtherance of common inl committing the crime. Direct| available and, therefore, su< Apex Court in the matter of Girija Shankar Vs. State of U.P. r+ported in AIR SCW 810 has heid that distirictive feature of Secticjn is the element of participatipn ih person for an offence; committed by Griminal Act perpetrated by seyeral persons arises under Secti<j>n 34 if such criminal act is donein ;ention of the persons who join in proof of common intention is seldom ;h intention can only be inferred from the circumstances appearing|from the proved facts ofthe case and the proved circumstances. |n order to bring home the charge of common intention, the pros ^eution has to establish by evidence, whether direct or circumstanttialythat there was plan or meeting of ^ 1 ^mipU of all the accused per^ons to commit the offence for which ^R^^ s^^^ ^/ XI-HC-22 an^iqn ?ii?i''3n^?i Sfcliqi ^ftB ~s^f ^wvm.wssws, Tfwwy 3I!^!I TOITWtrftti 12. intentiotially ea<ih they are qharged wifh the aicf on the spur of moment; buf commtesion of the crime. Th< two or more persons intentiot law is just the same as if himsetf, The. existence of participants in a crime is the Section. It is not necessary charged with'commission of identicallysimilar. The acts have been actuated by one order to attract the provision.l with the aid of Section 34 be common intention of all ttt be in furtherance oftheir aln "1ay oftde comiinon Applying the above principal present case, as per the Panchayat of thecommunity Lalsai and during that Pan| befaveen Bhojram- the father Udayram who is brother of intervene, in that process a] wooden clubwhich-was fixed ^nd Roftit cam®with Lathi ~r77——-i^ ' ' ^Pfe^T •WRlf•?'fe'^T •rfsi^T!: ^7 .sfwisn^; OfSection 34, be it pre-arranged or 4 it must necessarily be before the tcue concept of Section 34 is that if do an act jointly, the position in of them has done it individually by |a common intentiQn amongst the e^sential element for application of this |that the acts of the several persons ofFencejointly muSt be the same or be dHTerent in character, but must landthe same common intention in Thus inorder to convict an accused IPC it is necessary that there myst t'je accused persons and the act must intention. if we look into the evidence of the Iprosecution evidence there was a |n the thrashing field of the deceased ;hayat some altercation took place l.of ttie accused persons and P.W. 2 phojram and when Lal Sai came to of sudden accused Jailal pulled a |n the earth at the place ofoccurrence a^id Jailal started assaulting Lalsai in [Tit^ c;f<a^ -'f sn^iqii. fssiwan^l '3i^?T^^li^t ffl "S^S ^fPffvW, •sSi^W^, ^VW1< ail^[ ?:RHW:'HfCT which Rohit had nof partieipl cannot be inferred that Rohi cause death of Lalsai. Jailal First Information Report,.*an< which was lodged by none ^ accused Rohit in any instigated Jailal to assault LE|! commbn intention regarding attributed to Rohit for the inju| Rohit was not sharing the int^ made by Jaiial. Therefore th| aecused Rohitwith the aid o< of murder of Lalsai cannot bf on any legal evidence. ip^ted Injupes cbncerned, even in the F.I.R. who has been examined as evidence that Rohit assaut Ex.R/15, therefore the offen 'b. 'BPi'l^pn'I iWiytT I; therefore from the aiaove fact it |t was sharing intention with Jailal to ^ssaulted Lalsai three times as per the there is no allegation in the F.I.R. Ise than deceased Lalsai himself that i|er tookpart in~ assaulting him or he Isai. From the evidence on recordthe the assault caused by Jailal cannot be caused by Jailal to Lalsai because intion with Jailal forthedeadtyassault ^ flndings of the trial Court convicting Section 34 of the IPC for commission fe sustained as the same is not based 13. So ..far as theconviction ilnder Section 323/34 6f the IPC is given by Lalsai he had mentioned that accused Rohit assaulted M<4nnudai with the stick and Munnudai p.W. 3 has categorically stated in her ted her on her hand withstick. The same stands corroborated W the medical evidence as Munnudai was examined by Dr. G. yenketesh who found that therewas lacerated.wound in the size <tf 2 and % x % inch on herhand which was simple in nature and caifsed by blunt object and injury report is e under Section 323 ofthe IPC was [^•^fig^ KI' / y' ;: 'ly\ XI-HC-22 •^r•^rpiRpt, artlti'iio, f«i<'ii'M3< wrefT g-.tncb sn^r-qn^ 1:?;iRT3n^I gniN>"Hii?r -/. SI'^TTRIIW'Hf??; 14. established against the'accusejd effect does not suffer from an< does not require any interfer^nce based on legal eyidence. In the result, appeal of account of his death during th^ the appeal of accuSedRohit is sentence underSection 302/3' acquitted of that charge. awarded under Section 323 accused has already served| remained in custody during t'rii years which has not been di^ Rphit is on bail; therefore, his b^ accus^d/appell 15. The appeal thus stands disposejd of -SdA- L.C. Bhfdoo Judge >. / ^rafeRh •wrcff'?'feTstTi»R?R 1; Sif^tH 3?1^| and finding ofthetrial Courttothis Jllegality or infirmity and the sairte 3,,bythis Court as the same is lant Jailal stands abated on pendency of this appeal, However, ^artly allowed and his conviction and of the IPC are set aside and he is Hbwever, conviction and sehtence bf the IPC are maintained. The the said sentence because he and this appeal for more than five >puted by State counsel. Accused iil bonds are discharged. Sd/- Dhirendra Mlshra Judge ^ '-.'^ [lit^tfisrir }y BF: