HIGai COCRT OP <afflATnWiARH. BajMBPUR CRiaiMAI. APPEAL KO. 180 OF 1990 ^^7 Dalpratap aiid another Vs. State ofMaShya. Pradesh (Now Chliattisgarii) JinDGMENT Postfor 22.03.2007 Sunil Kumar Sinha Judge HIGH COURT OF CHHAmSQARH. BIUUBPOR CRIMUIAL APPEAL N0. 180 OF 1990 AppeUanta: Dalpratap, soa of Chandrabhan Siagh, ayd about 25 years, Kamal Singh alias Gopal, Ayyd about 25 yeara, s/o Shyamtal Goad, Both labourers, resident of Kh<^saapaiu, P.S. and Tahsfl Manendragarti, Distfc Saisuja, (now Distfc Koria)(C.G) Vermr Respoadent: State pf Madhya Pradesb (Now Chhattisgarl^ Apoearance: Shri Abdul Wahab Khaa, counsel &r appeUaat no. 1. Sint. Usha ChandialEar, coimsel for appcllant no.2. Shri Arun Sao, Gcvt Adwocate for the State. "p •:--\ Jl»DGNBT (22.3.2007) SnnU Kiunw Slnha. J. (l| Thjs appeal is directed agamst the judgment of coavictfon and order of sentence dated 18th Januaiy 1990 passed by AdfU. Sessfons Jud^, Manengragjcah, in Sessions Trial No.23/1^8, whercby the appeBant no.l Iias been convfcted u/s 307 I.P.C. aad secttoa 25-A ofthc Arma Act and seatenced to zmdergo R.I. for 4 yeara and sfat months respectivety wifh a directfon to run the scnteaces concurrenfty and the appeBant i»o.2 bas been convfcted u/s 307 read wifh scction 34 I.P.C. and seKtenced to undei^o R.I. &r4 ycars. (21 The brief facts are that Ramjaa (P.W.4) was a ClMwlddar in a Video haB. On 3.8.1987, after fhe second show was over, he aloag-witfa fhe appeBaats were slceping on Devi in fhe haU itself. At about 1-2 a.iu, he heard sonae aoise aad when he wote up, Gopal (sKxniscd no.2) caught hiin and Dalpratap (accuaed no. 1) gave two faufe btows to hiin onc on hfa stoinach repon and fhc ofhcr on his r%ht thigh gnd thereafter both ofthfita tried to run away. Accused 110.1 was caught on the spot by one Dhancsh Mishra. However, aGCUsed no.2 succeeded in ninning away G-om. the place of occuirence. Mahesh Tiwari, a woricer crf fhe video hall, uumediatcly wcnt to thc PoUce Saluyata Kendra, Khogapani and todged a xeport, on wluch, a DehcxK NcSshi was recorded On 03.8.1987. Ramjan (P.W.4) was sent for medical exainination to thc Coiiununily HeaUh Ceatcr, MaDendr^arh, throi^h a requisitioa undcr Ex.P-6/A, finm where he was referred to Central Hospital, Manendr^arh. Hc was adnutted ia thfi said hospital at about 6 a.m. aad was treated (hrough Bed Head Ticfcets EX.P. 1 to P. 14 and was iiltimatety dischai'ged on 11.8.1987. DuriD^fhecourseofmvestigation, blood stained soit and plaia soU were seized finin the placc of occurrence and on 3.8.1987 at about 7.30 a.m., tfae Fiist Iitformatioa Report vMe Crime No.270/1987 was registered ia PoUce stetion MaiiendBagah under sectton 307 I.P.C. & section 25 of fhe Arms Act Dalpiatap was anested at the scene of occunenice itself and at about 3 a.m., on fhe same day, one Rcmywri Kf^e (Article A), one white fiiB P&at (Artfclc B) aad onc Jeiaey (ArtiGte- C) were seized fiom his posscssion imdcr Eii.P-3. The slurt (Arttele D) aad P&at (Articte E^ were also seized fix>m accuscd no.2 Kamal Smj^i after taku^ of Chem fiom the body of this accused. Thc said Dcvi, stained wifh btood, was abo seized under Bx.P.9. AU the artictes, seized during the course of investigation, were sent for tteir chenuial escanunation to fhe Director, ForcnsiG Scfencc Laboratory, Sagar, under BX.P. 10. The report was received under Ex.P.ll. Thsse artictes were further sent to the Sciencc Laboiatoiy at Cateutta, under Ex.P.12 fixan Saya- and tte report of Cateutta Laboratoiy was icceived under Ex.P.13. Accordmg to fhe report received fipom the said laboratories, fhc Knife and thc ctofhes, scfaed fi»mthe possession of tbe accuscd persons, were found to be stained wifh. human btood. After coaipletion of (he nivest^Btioa, the chai^e sheet was fited on 3.11.1987 in the Court of Judictel Magisteate, First Class, ManendragaA, who in tum coaiuiutted fhe niatter to fhe Court of Sess&>ns vidc oider dated 03. 12.1987 fiom where the inatter was rcceivcd on teansfer by the Court :of Addl. SessioDS Judge, Manendrayu-h by oider dated 19.1.1988 where fhe trial was concluded. (3( The convk-tion of the accuscd persons fe bssed upoa (he testimony of Rainjaa (P.W.4) supported by medtcal evidcace of Dr.A.P. Rai (P.W.3) who had firatty exHmmed him em. fbe requisition sent by tihe Polfcc,aiid also Dr.P.K. Kat (P.W.l), fhe Deputy Medical Supenntendent, Centcal Hospital, Manendra^irh. The evidcnce of Dr. A.P. Rai wouM show fhat oa medfcal cxainmatfon of tte wctan on 3.8.1M7, he fouiid the foBowing injuncs: (1) An iacised pei^tiating wound in the iniddte offte stomach, d4thtfy uppcr to &C epigastrium regton msizeofl'^cm wMffa and 5 cm decp into tfae stomaclt (2) finoin which the stomach matter was comiogout An inciscd wound ia size of3cm x 2cin x 4cm oa tfae i^ht fhigh. Accoidmg to him, bofh tlic iajuries were caused by sharp edged weaponwiflun 2-4 hoiirs fi»mthe time ofexanunatioa. Injuiy no. 1 was grievotis in nature and by •flie saai injury, a tong was punctured aad air was passing through the penetcated area of lungs. Injuiy D0.2 was siinpfein iiature. The doctor has provcd his uijuiyreport as Ex.P.6. (4( Learaed couasel &r appeDant ao.1 afgued that in the facts suid circuiastaaces of this case, an cffeacc u/s 307 IPC would not toe Daadc out ^amst Bppdtoat ao. 1 and at ibe most, the ofFence wouM faB u/s 324 IPC. So fer as appeflaat no.2 is concemed, it was afgued fhat his coaviction wifh fhe aid of sectfon 34 I.P.C. is not justified, as the pnnrisioiis of the said sectron would not bc attraeted in this case. (5) I have heard fearaed counsd for fhe parties and have also perused the records ofthe Sessicais Coiut. (6) The victim Ramjan (P.W.4) lias stated that after thc second shpw was over at about 12.00 in tfae a^it, be •»Eta sleepmg ia the Wdeo haU alongwith accused ao. 1 & 2 aad the door of the IiaU was locted. At about 2 a.in., he heari some noise aad when he wote up, fbe appdtent ao.l inflicteid a laufe bJow at fhe left portfon ofhis stoBMch region bclow the teft ribs. Tbe second blcw was ghren oa his light thig^i. In paia 6 oflus cvidence, he has stated that at fhat tuae, the appeBant no.2 was tiyio^ to hoM his waist aad he tried to siaateh fhe knife fix>m appellant no.l, but he could not succecd and both the y ^peUaats ran anray froin the place of occurrence. So feur as mflictmg of two knife btows by ttie appeBant IK».1 is conceraed, nothang couM be bnm^it by the defencc oa the basis ofwhich, it xaay be disbdieved. The testiaiony of the vfctun to the cxtent fhat two knife btows in the above inanner wcre giwai to him by appeUant no.l has bccn fulfy coiToborated by tlie atetUcal evidence of the two Doctors ie., Dr. P.K. Kar P'.W.l) and Dr. A.P. Ral (P.W.3) and fliere appears to be no dfapute re^udu^; affl ttus and as aigued by teamed cx»imselfor fhe appeBaat no. 1, tfae point tiemains for consideration is as to what ofltooe was coninutted by this appeBant (7| ta fhc matter of Smfti PrwaaA -Va- State ^SIhw. Afll 196S S.C. 843. the Apex Court held fhat in order to bring fhe offeace homc to aocused, fhe piosecution Bnust establish that his mtentum was one of tfae three kinds mentioned in section 300 I.P.C. The state ofinind offihe acciised has to be dedueed from surrounding circumstances and mothre would be a relevant ciroumstance and where fhe evidence fe not sufflkaent to estabUsh wifh certam.ly, cidstence of requfaite iateatioB of knowtedge of axiused, fhe axiused can be oonvicted only u/s 324 and itot u/s 307 IPC. (8| In Bari JtStehan dk Stats sf Sariftaut -va- <Bhd Wir Stnah aiut •tltera, Afll J9SS S.C. 3237. the Apex Court further heM that u/s 307 IPC, what Ihe Coiirt has to see is, whether the act irrespective of its result, was done with fhe intention or knowledge and under cucuinstaaces meationed in fhat scction. The iatentfon or knowtedge of fhe accused must be such as is xiecessaxy to ccnastitute niurder. Wifliout this --"V iagredient being established, there can be no ofencse ofattempt to muider*. U/s 307 the intention preccdes the act attributed to accused. There&Te, the intentton is to be gatfaered fiom aH circumstances, and not merety fioni thc consequcaces that ensue. The nature of the wcapoa used, maaner in whfch it is used, inotive fbr fhe crinie, severity of the btow, the part of fhc body where fh.e iiyuiy is mflfcted are soaie of the fectors tbat may be taken into consideiation to detemunc (he iatention. (9) In the case oa hand, fhe jntention or the knowlcdge of (1» appeDant no. l is writ large on record as it can be gathered fiom varioiis ciroumstaaces comu^ forth in tfris case. Firstfy, the weapon lifee Knife, whfch fe> ofabout30 Cias. fcn^tfa, (14 cms crf sharp area and 16 cms of grqi are^ has been iised by tliis appeBant and fhe ptece of body choscn by haa is tfae ep^astriuin region. The seventy ofttie btow aod the quantum of &rce used can also be gatfaered as dve to the said btow on the afbresaid region, the wcapon has penefcated to fhe depfh of5 Cins and it has peneteated the lungs also fix>m whfch, the air was commg out Not onfy this, a veiy important toctor ia tfaat after uiflicting injuiy no.l, appeflant iio.l ag^in inflicted a second btow whfch w^ icceivcd by the nctim on his xi^xt ttugh. It shows that nothmg had hqtpeacd at a spur of momcnt and eveiytiung was preiacditated. After gwmg the first btow, fhis appeUant, with an mtentkm to attcmpt the life ofwictim gavc a icpeat blow on hini, which Iwsls3y coirid not mflict his vital part aad was icccived at fhe thi^i rqpon. AU theae cncumstances are suggestivc of the &ct that the jnteation or knowledge of fhe aecused/appeBant no.l was such that he intea<ted to kiB (he Yfc'tim and he realty atteinpted tus life with fhc aforesaid iatention. For the foregoing reasons, I do aot fiiid any foroe in the aiguinent advanced by leamed coiuisel for fhe appeflaat No. l fhat in the facts axid cucumstences of fhis case, an odfetice u/s 307 IPC would not be inade out E^ainst hun. So fer as oflfence u/s 25-A ofthe Anns Act is conceraed, nothing l ta been argued before me in fhte veyaad and thc fin»lingrecorded by flic trial Court vide Paia 14 of the judgmcnt that fbe sdbresaid weapon (knife) was a prohibited article within the ineaau^ ofthe said Act appears to be fiiBy jiistificd aad I hoM it accoidmyfy. Thereforc, both the ofifenccs against appellant nb.l were righfty held to be proved by the Sessions Court. (10) So far as appeDaat no.2 is conoemcd, he has bccn convfcsted wifh fhe aid of scctk>n 34 IPC aad the al^ation against him is fhat he was holding the waist of fhc victina at ibe time when fhe knjfe btow was given to hita. In paia 4 of fhe evidence of thc victun (P.W.4) nothmg has been said about his rofc by tbe victim. Hcwevcr, ia para 6, he has stated that fhis ^peBant was tiying to hold his waist and further Para 27 ofhis evidence comptetely dexnolahes the case of piosecutfoa agamst this appeBant as Ifae same has been deposed in fhe folfawing manner; *ift ^IR ^ TOR 4 ^? ^RT ^lt.f^ %; ^ ^t Stmr ^ ^ ^ 1f 'co^ T(Rr w, w ^ier ^ ^?T W 1 ^ g^RT WH ^ W^ TO([ q? iRIW ^S! t, f^ Wff ^ ^lt q?^ ^R TO? cft &% ^fe ^I^ ?K ^vf IRffT ^ ^ ^5 ^ tll^ilRT W f (11) Now the question arises about the conviction of this appeUant with fhe aid of sectfaia 34 of IPC. Sectioa 34 bss beea eiiacted on fhe principle of joint Mabilily in the doing of a criminal act The section is onfy a rule of emdcocc and does not create a substaative oflfeace. 'nie distinctive featuie of fhe section is tfae eteinent of partk:ii»tioam actioii. fbe BabiKly of one peison for an oflfeiace committed by aaottier ia the oourse of crimiaal act perpetrated by seveBal pcisons arises uader sectioa 34 if sueh crimmal act is done ia fiM'tItMaiice <rf a comnaon iatentton of llie persons who join in committiag the Grime. Direct proof of coaainoa intentton is seldoin availabte and, fhere&re, such intentktn can oaty be infened fxaa. the ciroumstances appeariag fioni tfae ptoved fiicts of the ceeae and the provcd cinaunstances. In order to bring hoine the chsu'ge of coiiunoa intentK>n, fhe prosecution has to establish by evideace, whefher direct or cuciunstantiHl, fhat fhere was pfaa or mceting of minds of aU fhc accused persons to cominit the ofieflce for wtuch fhcy are charged •nrith fhe aid of Section 34, be it prearranged or on the spur of the mcassBn.t; but it must necessanty be be&ic the conuni^oa of the cdme. Ttte true contents of thc section are that if two or moie persoas intenttoaaUy do aa act joiatfy, tfae posyion in tew is just the sameasifeachoftiicmIiasdoneitaMlividitaUybylutn^lf. Tlse existence of a common inteation aniongst the partieq>aats ia a crime is tbe essential eteiaeat for application of this sectwn. It is not aecessaiy fhat (he acts of the several persons chargpd with coiumtesion of aa oflfence jointfy inust be tfae saine or ^ .tically sunilar. Tbs acts naay be diEfeieat ia. character, but inust liave been actuated by oi»e and tfae saine coKunoa intention in oider to attract the proviMon. ffease »€*Antt. Shamut cutd oth.ers -Va- State 9f Jhmrtc^awtt. 13004i S SCC €79. The Apex Court further clarified tfaat in 1870, Sectfoa 34 was amended by insertion of ffae woids "in fiirihexance of tbe cominoa i&teation of aB" after the word '"petsoas* and befere the word 'each", so as to matee fhe object ofsection 34 clear. The section does aot say "fhe cominon iatention of aB*, nca' does it say "aad iatention eommon to air. Uader the pnwiswiis of Sectun 34 the essexice of fhe liabiUty js to be found in the cxisteace ofa coiumon iatention animnting fhe accused leading to the doing of a criaainal act in furtheiance of such iateatioa. As a result of(he appUcatioa of priacaptes enunciated ia Section 34, when aa accused is convicted under saition 302 icad witli section 34, in law it means thatllie acciised fa liable ifor the act which caused death ofthe deceased ia tfae saine manner as if it was done by hi atoae. Tfae piovision is iatendal to naeet a case jn which it laay be difficult to distiaguish between acts of uulividual inembers of a party who act in fiu-ttieraace of tfae common iatention of aB or to pxove exactly what part was takea by each oflliiein. (12| It was further hcld by (he Apex court ia fhe naatter ofDfmi Staffh -Vs- State ofWkar^ aOOS SXC tCf^ 237/para 3QI that to constitute commou iatention, it is necessary tfaat iateution <rf each one of tfae accused be lcnown to the rest and shared by thena. Undoubtedty, it is difficutt to pnwe even the iatention of an indwidual and, thcrefore, it is aH the inore difiBcult to show the comiaon inteatfon of a poup of persons. But however 10 difiSciilt may be the task, the prosecutioa must tead evideDce of facts, ciroumstaxices and coaduct of fhe accused fi»m Wbich their coiiunoa intention can be safety g^theied. Iain€»stcases, it Taas to be nifeired fioin tfae act, conduct or other Betevant circuinstaaces of the caae in hand. Tbe totedKy of fhe cuciimstances inust be taken into eoiisideratfoa in arrwing at a conclusioa whether tfae accused had a coinmon intention to commit oflfence for which they can be coiwicted. The fiicts and cucuinstances of cases vaiy aad each case has to be decjded keepmg io. view ibe facts Hivolved. Whetfaer aa act is in fiirtherancc of the coininon iatention is an incKlent of fact aad xiotoflaw. (13} Therefore, it is ctear that a person mea?ely because <rf liis presence at or iiear the sceaae with&ut evea doaig aaytiung jnore, without eanying a weapon and inthout fhete being aa etemeat of sharing the conunon iatentkui, caaiiot be conwcted wi(h thc aid ofsection 34 IPC. (l4( la the opinion of this Court, in tfae facts and circumstaaces ofthis case, par&saSarly m. VSBW ofibe evidence (rf fhe victim. recoided vjde paca 27, it caiuaot be said wifii certitude tfaat either the appeQeait ao.2 has partfcqiated in coiiunissicai rf the said crune or the aforesaid Grime was comautted by appellaat no. 1 & 2 in furtheiaace of fheir conua<a» mtentton, thierefoic, I hold fhat the piosecution couM iiot pFDve fhe case beyond aH icaa>nable doubts against appdtoat iao.2 aad his conviction based upon ths rficwe evideitce particularfy wifh tfae aid of sectton 34 ofIPC is not ia aocoidance with law and fte same deservcs to be set asMle. 11 (1S) la ibc result, the appeal partfy succeeds, Tbs cowwsivm. aad senteaace awaided to appdlaat m>. 1 are coafimied and the coaviction and senteitce awarded to appeBaat ao.2 ave aet acsde. Accoidiagly, thc appeal of appeVaat ao.1 is disnussed aud the appeal ofappeUant no.2 is aBowed. Sdl- SunU Kumar Sinha Judge