1% @ HIGH COURT OF CHHATTISGARH : BILASPUR *m‘ Criminal Aggeal No. 374 oF 1990 Murma alias Raghunandan Vs. The State of Madhya Pradesh (now State of Chhattisgarh) 35 Criminal Mal No. 552/ 1990 Raju D Vs. !f #3 The State of Madhya Pradesh (now State otChhattisgarh) Comm :- Hon’ble Shri Fakhruddin, Acg. Chief Justice & Hon’ble Shri Dilip Raosaheb Deshmukh, J. ‘ Shn Surendra Smgh leamed Sr Advocate With Mr NeeraJ Mehta counsel for the appellantg Shn M.P.S.Bhat1a, P.L. for the State. JUDGMENT (Dehvered on L6 2005) u, Per Dilip Raosaheb Deshmukh J. -————.—2__ Cnmmal Appeal No.374/ 1990 flled by Munna alias Raghunandem and Criminal Appeal No.552/ 1990 flled Vby Raju are directed agaihst the judgment dated 30th Januaxy 1990 delivered by Shri B. K. Shrivastava, AddL Sessions Judge to Sessions Judge, Bilaspur in sessions case No.64] 1988 whereby the appellant-Raju was convicted under Section 302 I.P.C. for committing murder of Santosh Kumar and the appellant—Munna @ Raghunandanvvas convicted under Section 302'Iead with Section 34 of the I.P.C. for committing murder of Santosh Kumar in furtherance of common . \ . intention shared with Raju and both were sentenced to imprisonmenf for life. s J 2. (Do-accused Dinesh Jaiswal who was also prosecuted under Section 302 read with Section 34 of the I.P.C. alongwith the above named appellants was absconding throughout the trial and was proceeded under Section 299 of the Code of Criminal Procedure. Appellant-Raju after undergoing sentence was released from Central Jail, Rajpur on 18.12.2002 on the eve of Guru Ghasidas Jayanti after receiving special remission of sentence. 3. Admittedly, appellants-Raju, Munna and co—accused Dinesh worked in Manav Mandir Hotel situated at Gaurela and shared the O house at Singhal Tola, Gaurela with Dhaneshwar P.W.2, Balram/ P.W.7 and the deceased Santosh. 4. The prosecution story is that in the intervening night of 13th 8r, 14th November 1987 Santosh was sleeping in the room at the place where appellant—Raju used to sleep. Due to this there was a quarrel between the appellants, co-accused Dinesh Jaiswal and the deceased Santosh. In the intervening night of 14th 85 15m November 1987 the deceased Santosh alongwith Dhaneshwar P.W.2 and Balaram P.W.7 was sleeping in the room. [At about 2.00 A.M. the appellants Raju, Munna with co-accused Dinesh came there. Appellant Raju kicked Santosh who was sleeping. A scuftle ensued between Santosh and Raju during..which Santosh fell down. The appellants and co-accused Dinesh beat Santosh with nsts. At this juncture, the appellant-Raju took out a knife and brutally assaulted Santosh several times at the chest, .back and hand. Santosh died at the spot instantaneously. Dhaneshwar . P.W.2 and BalrampP.W.7 saw the occurrence. When they tried to intervene, the appellants threatened to beat them. They shouted. ' g, Petla P.W.1 came to the spot. The appellants and co-accused Din6Sh ran away. 5. Dhaneshwar P.W.2 lodged F.I.R. EX.P.1 at 8.30 A.M. in RS. Gaurela situated two kilometers away from the place of occurrence. Sub-Inspector R.C. Mishra wrote marg intimation EX.P.7, reached the plaCe of occunence and prepared inquest Ex.P.9 and sent the dead body of Santosh for post-mortem. Dr.M.P.Khare P.W.5 who conducted the autopsy found the following injuries on the body of Santosh : Punctuted wound situated on the back on right side at a point 1.5 cm. lateraL to mid line and ' 13.5 cm. from inferior angle of the right scapula, wound of entry placed vertically, 2.5 cm. in length and 0.75 cm. in Width in centre narrowing at ends to form acute angles; Edges were clean cut inverted and stained with blood. Wound communicated, with right abdominal cavity at a point 3 cm. right—wards fmm vertebral column between 9th 85 10m rib posteriorly. Clotted blood was present in the surrounding muscles along the coiirse of the wound which was obliquely lateral and forwards. . . 11 lncised wound situated 9.5 cm below the injury No.1 on the right side of back, measuring 2 1/2 cm. in length &. 0.75 cm. in width, narrow at both ends. Edges were clean cut, stained with blood. It was 6 cm. deep passing laterally and downwalds through the muscles of right lower back. Clotted blood was present on the surrounding muscles. 111 Incised wound situated over posterior fold of left oxilla, situated 17 cm. distant from tip of left shoulder. It measured 2 1/2 cm. in length and 3/ 4th cm. in width in centre, narrowing at acute angles on both ends. Edges were clean cut, invert and stained with blood. Surrounding muscles had large amount of clotted blood. iv. Punctured wound situated over right anterior chest 1 cm. below 82; medial to right nipple. It measured 2 1/2 cm x 0.75 cm, placed horizontally, narrow at both ends to form an i. f I i " M thoracm cav1ty making 1ts Way into the lung pamnchyma (Mlddle and lower lobes) Huge amount of clotted blood was present 1n light antenor mtercostal muscles Through 85 through Incised Wound over left upper ann, wound of ently situated over medial aspect of left upper arm 1n 1ts m1ddle measure 2 3A cm x O 75 cm edges were clean cut mverted stamed withblood Wound of ex1t over lateral aspect of left upper arm s1tuated 15 cm. d1stant from tip of left shoulder, edges were clean cut, everted blood stained surrounding muscles csrtained blood clots. gé acute angles (measurements 2.5 cm. x 0.75 cm.) cdges were clean cut, inverted stained with blood Wound communicates w1th nght s1ded / Dr. Khare P.W.5 opined that a‘ll the injuries mentioned above were ante~mortem in nature and were caused by a sharp cutting object with a long cutting edge. Cause of death was opined to be shock and haemorrhage due to punctured wounds (No. 1 85 No.4). Sub-Inspector RC. Mishra seized a bloodstained knife from the place of occurrence vide EXP. 12. After completion of investigation, the appellants” alongwith co—accused Dinesh were prosecuted under Section 302 read with 34 of the I.P.C. 6. The appeHants—Munna and Raju abjured the guilt, pleaded innocence and led no evidence in defence. The prosecution examined as many as eight witnesses. The trial Judge relying on the testimony of Petla RW. 1, Dhaneshwar P.W.2, Bpalram P.W.7 as also the medical evidence of Dr. M.P.Khare P.W.5, convicted and sentenced the appellants Munna and Raju as shown in para 1. 7. Senior Advocate Shn Surendra Smgh learned counsel for the appellantsMmaL/argued 1V that there was no cogent and reliable ev1dence on record to hold that the appellant—Munna had shared the common. intention with the appellant Raju for committing s p «w 5 @ murder of Santosh. The incident had occurred in the very late hours of night. It was pitch (iark inside the room. The aphellants had, after finishing Work, goneAthe place of occurrence which was their home’to ‘sleep. There was no previous enmity or motive for the appellaiits to cause the death of Santosh. An incident of a trivial nature had suddenly sparked od‘ the occurrence when the appellant Raju suddenly took out a knife and stabbed Santosh Kumar. It was wholly an isolated act of Raju Without any prior concert with co~appellant Munna. The evidence of Balram P.W.7 that at the tirne when Raju was repeatedly assaulting Santosh, the appellant Munna vvas holding Santosh was wholly unreliable since no such statement was made to the police by Balram P.W.7 under ‘ Section 161 Cr.P.c. or by Dhaneshwa; P.w.2 in the Rm, Exm. Reliance was placed on Mitter Sen and others v. State of UP‘, reportedin A.LR. 1976 S.C. 1156, Rambilas Simh and others v.- State at Bihar reported in A.I.R. 1989 S.C. 1593 and Kashmira Sigh v. State oiPuniab reported in A.1.R. 1994 s.c. 1651. So fare as the appellant-Raju was concerned, it was urged that the appeal is only of academic interest since appellant—Raju was released after undergoing sentence upon grant of (remission by the State Government. On the other hand, Shri M.P.S.Bhatiai, learned Panel Lawyer for the State arguing in support of the impugned judgment placed reliance ‘on Ramesh Sinqh alias Photti v. State of A’P. reported in A.1.R.lzoo4 s.c. 4545 and contended that the tract that appellant Munna continued to hold the deceased without making any eEort to prevent co—accused nom further attacking . . would lead to the irresistible and inescapable conclusion that he to» I , ‘ shared the common intention with co-appellant Raju to cause dtath of Santosh. x 8. We have heard the rival contentions and perused the recoxd of sessions case No. 64/] 1988. The testimony of Balram P.W.7 and Dhaneshwar P.W.2 clearly goes to show that a day pxior to the incident there Was a sudden quarrel at night upon an incident of trivial natum during which the appellants-Raju and Munna had scuffle-d with Santosh. Balram P.W.7 has testified that next day, late at night While they were sleeping inside the room the appellants Raju and Munna alongwith Dinesh came at about! 2.00 A.M. and started quarrel with Santosh. Appellant—Raju started assaulting Santosh Whh a knife while the appellant Munna ‘ and co-accused Dinesh‘held Santosh. They tried to liberate Santosh but the appellants threatened that if they intervened they would also be beaten. The testimony of Balram P.W.7 that the appellant-Raju had assaulted Santosh by ‘knife finds corroboration from the MR. lodged by Dhaneshwar P.w.2 on 15.11.1987 at Police Station\Gaurela and also from the medical evidence of Dr. M.P.Khare. P.W.5. Nothing has been elicited in the cross- examination of Baham P.W.7 by the appellant-Raju so as to discredit this part of his testimony that the appellant—Raju had assaulted Santosh by knife. The testimony of Dr. Khaie P.W.5 leaves no manner of doubt that the deceased Santosh was assaulted several times brutally on vital parts by the knife resulting in his death due to'shoek and haemorrhage as a result of 7 the two punctured wounds received by him on vital parts. ‘The presence of Balram P.W.'7 at the scene of occurrence is natural. He has absolutely no animosity against the appellants and had no roaSon to falsely implicate them. 9. Having considered the evidence of Balram P.W.7 and Dr. M.P.Khaie P.W.5 and the F.I.R. EX,P.1, we are of the considered opinion that the learned trial judge has rightly convicted and sentenced the appellant—Raju under Section 302 I.P.C. for committing murder of Santosh. x i, 10. The only point which requiies our consideration in this appeal now is whether the appellant—Murma can be held constrlictively liable for the act of appellant-Raju. So far as Dhaneshwar P.W.2 is concerned, he was. present at the scene of occurrence but did not state that the appellant-Munna had held Santosh to facilitate assault by Rajé by a knife. According to him, appellants-Raju, Munna and co-accused Dinesh were all fighting with Santosh. The place of occurrence was the habitat of the appellants and they had gone there to sleep as [usual It appears that a tntlmg incident which had occurred a day earlier suddenly got sparked OE when RaJus leg hit the deceased who started abusing him. Balram P.W.7 has nowhere stated that the appellant-Raju had entered the room brandishing the knife in his hand. The F.I.R. lodged by DhaneshWar P.W.2 now-here stated that the appellants had held Santosh while Raju was assaulting Santosh by knife. Therefore, the testimony of Balram P.W.2 that the‘appellant Munna and co-accused Dinesh had held Santosh while the appellant-Raju Was assaulting Santosh by knife is . nothing but an improvement \ ‘in the prosecution story which fails to inspire confidence. This is an important omission in the statement l V / v. Q ‘ of Balmm P.W.7. Sub-Inspector R.C.Mishra P.W.8 has in cross- examination clearly Stated that Balram had in his statement EX.D-2 recorded under Section 161 Cr.P.C. did not state that the appellant-Muma and co-accusod Dinesh had held Santosh While the appellant-Raju was assaulting him by knife. 11. The appellants had no previous enmity with the deceased Santosh. It appears that an incident of trivial nature occurring a \ 'v day prior to the occunence during'which the appellant—Raju had stepped on the feet of Santosh who was sleeping suddenly sparked off the occurrence on the next date when Raju kicked Santosh whd was sleeping. The prosecution evidence does not reveal that the appellant—Munna had the knowledge that the appellantsRaju had a knife in his possession. The evidence also does not Show that the appellant-Raju had entered the', room brandishing the knife. It appears that the appellant—Raju suddenly got agitated to such an extent that he took out the knife and‘ stabbed Santosh several times on vital parts. This act of Raju was his isolated act without any prior concert with the co-appellant Munna. 12. In Ramesh Sinqh alias Photti v. State of A.P. reported in A.I.R. 2004 S.C. 4545 it was observed by the Apex Court that common intention essentially being a state of mind, it is very difhcult to procure direct evidence to prove such intention. In most cases it has to be inferred from the act like the conduct of the o accused or other relevant circumstances of the case. An inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which attack was made, from the nature of injuries caused by one or some of the appellants. The contributory acts of the persons who were not responsible for the injury can further be inferred from the subsequent conduct after the attack. Even an omission on the part of the accused can indicate the sharing of the common intention, the totality of the circumstances must be taken into consideration in arriving at the conclusion Whether the accused had the common intention to commit an offence of which they a could be convicted. {Y I 13. In the case of Ramesh Singh (supra), it was further held that the fact that the accused continued to hold the deceased all alone without making any effort to prevent co~accused from further attacking would lead to the ures1shble and mescapable conclus1on ‘that the accused persons shared the common intention With the co accused. However, m this case, there ls no reliable evidence on ' i record to show that the appellant-Munna had held the deceased Santosh at the time when the appellart—Raju had assaulted Santosh by the knife. In View of the omission in the statement I under Section 161 CrPC as also m the FIR EXPI the testimony of Baham P W 7 is nothing but a clear 1mprovement m the prosecution story which cannot be relied on. The circumstances of ‘the case also clearly indicate that there was absolutely nothing to show that the appellants had gone to the room with at prior concert to cause the death of Santosh. The evidence led by the prosecution clearly shows that the act of the appellant-Raju in assaulting the deceased Santosh by a knife was an isolated act The appellant-Munna neither had the knowledge that the appellant-Raju had a knife with him nor shared the o o ; 10 intemion with Raju to cause the death of Santosh. In Kashmira Singh v. Staie of Punjab reported in A.I.R. 1994 S.C. 1651 it was held that although the appellant-accused had held the deceased and another accused taking out a knife from his pocket inflicted single injury on the deceased it could not be held that the accused had pIiOr knowledge that another accused was armedtwith a knife i since common intention on his part was not proved. His conviction under Section 302 read With Section 34 of the I.P.C. was set aside. In Rambilas Singh and others v. State of Bihar reported in A.I.R. 1989 S.C. 1593 it was held that unless there was material to show that overt acts or acts wexe done in furtherance of common intention of all, conviction with the aid of Sec1ion 34 of I.P.C. could not be sustained. In Mitter Sen and others v. State of U P reported in A.I.R. 1976 S.C. 1156, two of the four accused persons were unarmed. The third moused had a knife but he was not brandishing it. It was in his pocket. Fourth accuse was ‘ alleged to be carrying a danda but his participation was not accepted by the High Court. It was held that it was didicult to attribute common intention to the accused persons who were unarmed. IV 14' Applying the principles of appreciation of evidence as laid down by the Apex Court, in our considered opinion, the common intention under Section 34 of the I.P.C. cannot be attributed to the appellant-Munna‘for the isolated act of the appellant-Rain. The appellant-Munna had accompanied Raju to his habitat where they ’ ‘ usually slept at night. He had no prior enmity with Santosh. He had no knowledge that the appellant-Raju was carrying a knife. “‘g‘ d @ 11 The incident had occurred very late at night. The evidence of Dhaneshwar P.W.2 and Balram P.W.7 also clearly shows that3it was pitch dark inside the room. No injuries were found on the person of Santosh which could have been indicted due to beating by hands and nsts. Injuries sustained by Santosh were such which could only be inilicted by a sharp knife. 15. The evidence led by the prosecution does not show that the appellant-Rain had entered the room brandishing the knife. There was a trivial incident followed by a quarrel in which appellant—Raju suddenly took‘ out the knife and assaulted Santosh several times on vital parts. In the facts and circumstances of the case, we have therefore no hesitation in holding that the prosecution has failed to prove that the appeHant—Munna shared the common intention with the appellant-Raju to cause the death of Santosh. Conviction of the appellant-Mimna under Section 302 read with Section 34 of the I.P.C. cannot, therefore, be sustained. ‘ 16. In the result, the appeal by Raju (Cri.A.No.552/ 1990) is dismissed. Conviction of Raju under Section 302 I.P.C. and sentence awarded themunder are maintained. Appellant-Raju has already undergone sentence. ‘The appeal (Cri.A.No.374/ 1990) nled by Munna is allowed. Conviction of appellant—Mumm @ Raghunandan under Section 302/34 of the I.P.C. and the sentenCe awarded thereunder by the tlial Court are set aside. The appellant-Munna @ Raghunandan is acquitted of the charge under s Section 302/34 of I.P.C. Ski/- ’r Sd/- fialzilip Raosaheb Deshmukhf] j i Acting Chief Justice . i Judge {"‘\"\.._N1U{Jlk S i i T 3 <5. 1 1.2005 W .r‘ i J g . 1 1. 2005 F, Anjani i