^ 4 F^ r HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNII/KUMAR SINHA, J. Criminal Aopeal No. 350 of 2003 Gharbharan Vs. State of Chhattisgarh (And other connected Cr.A. No. 419 of 2003) ^' JUDGMENT For consideration Sd/- SunU Kumar Sinha Judge / ^ HON'BLE SHRI JUSTICE RAJEEV GUPTA J ^L^re-^^ Sd/- Chief Justlce Post for Judgment : ^O /08/2009 Sd/- Sunil Kumar Sinha Judge A HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLBSHRI SUNILKUMAR SINHA, J. Appellant ^ Respondent Criminal Appeal No. 350 of 2003 Gharbharan S/o Bagholan Rajwar aged about 35 years, resident of village Barol, Chowki- Karanji, P.S. Jainagar, District Surguja (Chhattisgarh) Versus State of Chhattisgarh through Police Station Jainagar, District Surguja (Chhattisgarh) Appellant e" And Criminal Appeal No.419 of 2003 Gahabar S/o Jhunnu Lal, Rajwar, aged about 20 yrs., resident of village Barol Chowki Karangi, P.S. Jainagar, Distt. Surguja (Chhattisgarh) Versus Resoondent State of Chhattisgarh through Police Station Jainagar, District Surguja (Chhattisgarh) (APPEALS U/S 374 (21 OF THE CODE OF CRIMINAL PROCEDURE) Aooearance: Mr. Rakesh Pandey, counsel for the appellants. Mr. Ravindra Agrawal, Panel Lawyer for the State. 7Y ;.c Criminal Appeals No. 350 of 2003 & 419 of2003 JUDGMENT (2 O .08.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J, (1) These appeals have been directed against the judgment and order dated 29/30-01-2003 passed in Sessions Trial No. 392/2001 by the Sixth Additional Sessions Judge (F.T.C.), Surajpur, District Surguja (C.G.) whereby, the appellants have been convicted and sentenced in the following manner:- Appellant- Gahabar Conviction u/s 302 IPC u/s 323 read with Section 34 IPC Sentence Imprisonment for life Fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 4 months 'Y •^ & Appellant- Gharbharan Conviction u/s 302 read with Section 34 IPC u/s 323 IPC Sentence Imprisonment for life Fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 4 months (2) The facts, briefly stated, are as under:- Seven accused persons, including the 2 appellants, were tried for the offences punishable u/ss 148, 302/149, 324/149 85 323/149 IPC. The allegations were that on 28.9.2001 at about 6.00 p.m., they formed an unlawful Criminal Appeals No. 350 of 2003 & 419 of 2003 (•' assembly, participated in rioting with deadly weapons and in prosecution of the common object of the unlawful assembly committed murder of deceased Kisunram and caused injuries to his son and wife namely Sanjay Kumar (PW-5) & Janki Bai (PW-4). Gahabar had a kirana shop in the village. Deceased Kisunram was also constructing a shop in front of the shop of accused Gahabar. It is for this reason, the accused person had allegedly attacked over the deceased and the victims and they caused injuries to them. The matter was reported by the wife of the deceased namely Janki Bai (PW-4), on which a First Information Report was registered under Ex.-P/20. The Investigating Officer reached to the scene of occurrence, gave notice (Ex.- P/2) to the Panchas and prepared inquest (Ex,-P/3) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Community Health Centre, Vishrampur under Ex.-P/24, where the post-mortem examination was conducted by Dr. K.K. Tamrakar (PW-11), who prepared his report Ex.-P/37. The Autopsy Surgeon noticed 8 incised wounds on the vital parts of the body of the deceased including the skull and opined that all the injuries were ante-mortem and were caused by sharp cutting object. The cause of death was shock as a result of the injuries sustained by the deceased and it was homicidal in nature. In further investigation, site plan was prepared under Ex.-P/21. Another site plan was prepared under Ex.-P/27. Blood stained soil, plain soil and a piece of goggles were seized from the place of occurrence under Ex.-P/19. After taking the accused persons into custody, their memorandum statements (Ex.-P/4, P/6, P/8, P/10, P/12,P/14 & P/16) u/s 27 of the Evidence Act were recorded and the weapons of offences were seized at the instance of the accused Criminal Appeals No. 350 of2003 & 419 of 2003 persons under Ex.-P/5, P/7, P/9, P/11, P/13, P15 & P/17. A tabbal was seized at the instance of accused/appellant Gahabar and a lathi was seized at the instance of accused/appellant Gharbharan. Injured Janki Bai (PW-4) was sent for her medical examination under Ex.-P/25 and her injury report Ex.-P/25A was collected. Injured Sanjay Kumar (PW-5) was also sent for his medical examination under Ex.-P/26 and his injury report Ex.-P/26A was also collected. Janki Bai and Sanjay Kumar had sustained simple injuries. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/36 but the F.S.L. report could not be produced. After completion of usual investigation, the charge- sheet was filed in the Court of Judicial Magistrate, First Class, Surajpur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Sixth Additional Sessions Judge (F.T.C.) Surajpur, District Surguja, who conducted the trial and convicted and sentenced the accused/appellants as aforementioned. However, the other 5 accused persons were acquitted. (3) The prosecution examined 4 eye-witnesses namely Shivbalak (PW-1), Nanku (PW-3), Janki Bai (PW-4) and Sanjay Kumar (PW- 5). (4) Shivbalak (PW-1) and Nanku (PW-3) turned hostile and they did not support the case of the prosecution and the conviction of the appellants is based on the testimonies of Janki Bai (PW-4) and Sanjay Kumar (PW-5). (5) The learned Sessions Judge recorded a finding vide Para-33 of the impugned judgment that the prosecution could not establish •'T .b ^. Criminal Appeals No. 350 of 2003 & 419 of 2003 that the accused persons had formed an unlawful assembly and they participated in rioting with deadly weapons. It was also not established that the assault was made in furtherance of the common object of the unlawful assembly, therefore, the 5 accused persons were acquitted. However, the Sessions Judge held that the deceased and the 2 injured were assaulted by appellants Gahabar and Gharbharan; Gahabar was armed with tabbal and Gharbharan was armed with lathi Gahabar gave tabbal blows to the deceased and Gharbharan shared a common intention with him; and both the appellants also shared common intention for causing simple injuries to the victims. (6) Mr. Rakesh Pandey, learned counsel appearing on behalf of the appellants, has not disputed the homicidal death of the deceased. Moreover, it conies in the evidence of Janki Bai (PW-4) and Sanjay Kumar (PW-5) that the deceased was attacked by a tabbal by appellant Gahabar who received many injuries. The Autopsy Surgeon also found as many as 8 incised wounds on the body of the deceased and opined that the injuries were ante- mortem and the cause of death was shock as a result of the injuries sustained by the deceased and it was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. (7) Mr. "Pandey then argued that Janki Bai (PW-4) and Sanjay Kumar (PW-5) are the wife and son of the deceased, therefore, they are interested witnesses and their versions should not be relied F Criminal Appeals No. 350 of 2003 & 41^3f2003 on. He also argued that there is no evidence of sharing common intention to commit murder of the deceased by appellant Gharbharan, Gharbharan was armed with lathi There was no lathi injury on the body of the deceased. In fact, it comes in the evidence of eye-witnesses that Gharbharan did not assault the deceased and he only assaulted injured Sanjay Kumar. Therefore, the conviction of appellant Gharbharan u/s 302 IPC with the aid of Section 34 cannot be sustained. (8) On the other hand, Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (9) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (10) Firstly we shall deal with the question of conviction of appellant Gharbharan with the aid of Section 34 IPC. Section 34 has been enacted on the principle ofjoint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criniinal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct ^ ^.^ • fc-' ^" Criminal Appeals No. 350 of 2003 & 419 of 2003 proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission ofthe crime. The true contents ofthe section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. Please see Anil Sharma and others -Vs- State of Jharkhand (2004) 5 SCC 679. The Apex Court further clarified that in 1870, Section 34 was amended by insertion of the words "in furtherance of the common intention of alF after the word "persons" and before the word <<each??, so as to make the object of section 34 clear. The section does not say "the common intention of all??, nor does it say "and intention common to all". Under the provisions of Section 34 ^ l<; t Criminal Appeals No. 350 of 2003 & 419 of 2003 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts ofindividual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. (11) It was further held by the Apex court in the matter of Dani Singh -Vs- State pfBihar, 2005 SCC (Cri) 127 (para 20) that to constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all 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 most cases, it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into cohsideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and ^ ^K^^" Criminal Appeals No. 350 of 2003 & 419 of 2003 each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. (12) In the present case, it comes in the evidence of PW-4, Janki Bai, that "She reached to scene of occurrence after hearing hue and cry of Sanjay and saw that Gahabar (present appellant) assaulted her husband by a tabbai Gorelal also assaulted her husband with tangi. Rambilas, Shreelal and Gharbharan (present appellant) also assaulted him and Gharbharan assaulted her son Sanjay with danda. In cross examination, she admitted that she reached to the scene of occurrence when the accused persons were assaulting Sanjay??. Sanjay Kumar (PW-5) deposed that "On the fateful day at about 5.00 p.m. his father was sprinkling water on the newly constructed wall of the shop. He was along with his father. When his father was returning back, appellant Gahabar, all of a sudden, came from the back side and assaulted his father by a tabbal on his shoulder and back. Gorelal came running behind him. He was also armed with an axe. He assaulted on the nose portion of his father. He made cries, on which, his mother came there. Shreelal Rambilas and Gharbharan also came there. Gharbharan assaulted him by a lathf. There are many omissions in his case diary statement (Ex-D/3) recorded u/s 161 Cr.P.C. regarding manner of assault given by the accused persons to the deceased.'He has been confronted with his case diary statement. In his 161 statement, he deposed that all the accused persons ^. 10 ^ Criminal Appeals No. 350 of 2003 & 419 of 2003 came together and then Gahabar assaulted his father by a tabbal, whereas, in his Court evidence, he deposed that they did not come in group and Gharbharan came aftenvards who assaulted him with lathi This shows that there was noplan or meeting of minds ofthe appellants to commit the offence alleged, therefore, they did not share a common intention to assault deceased Kisunram, and the conviction of appellant Gharbharan u/s 302 with the aid of Section 34 IPC cannot be sustained. (13) So far as individual acts are concerned, the evidence of Janki Bai (PW-4) regarding assault by Gharbharan to deceased Kisunram is shakey. Sanjay Kumar (PW-5) did not depose that Gharbharan assaulted his father. Doctor has also found only incised wounds on the body of the deceased and has opined that they were caused by sharp edged weapon. This shows that Gharbharan, who was armed with a lathi, had not participated in assaulting the deceased and as deposed by the two eye-witnesses the deceased was assaulted by appellant Gahabar by a tabbal. (14) So far as arguments relating to interested witnesses are concerned, in Namdeo -Vs- State of Maharcishtra, 2007 AIR SCW 1835, the Apex Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be 11 Criminal Appeals No. 350 of2003& 4L9 of2003 characterized as an 'interested' witness. He is a 'natural9 witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The Apex Courf also referred to the decision rendered in the matter of Harbans Kaur and another - Vs- State of Haniana. 2005 AIR SCW 2074, in which, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. (15) In appreciationof evidence of these 2 witness, we find that it was established beyond all reasonable doubts that it was appellant Gahabar who assaulted the deceased with a tabbal causing as many as 8 incised wounds on the vital parts of his body and he alone was responsible for the death of the deceased. It was also established that appellant Gharbharan had assaulted Sanjay Kumar (PW-5) who sustained simple injuries. Therefore, the conviction of appellant Gahabar u/s 302 IPC has to be affirmed. However, his conviction u/s 323/34 IPC has to be set 12 ' Criminal Appeals No. 350 of 2003 & 419 of 2003 aside and conviction of appellant Gharbharan u/s 302/34 IPC has to be set aside and his conviction u/s 323 IPC has to be maintained. (16) Accordingly, the appeals are partly allowed. (17) The conviction and sentence awarded u/s 302 IPC to appellant Gahabar are maintained. However, the conviction and sentence awarded to him u/s 323/34 IPC are set aside. He is in jail since 29.9.2001. He shall be entitled to set-off the period already undergone by him. (18) The conviction and sentence awarded u/s 302/34 IPC to appellant Gharbharan are set aside. However, the conviction and sentence awarded to him u/s 323 IPC are maintained. It is stated that appellant Gharbharan is also in jail since 29.9.2001. He be set at liberty, forthwith, if not required in any other case. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti 4.