HIGH COURT OF CHHATTISGARH. BILASPUR ^ CORAM: Hpn'bleShrLRajeevJ3upta, C.J, & Hon'ble Shri Sunil Kumar Sinha, J. CriminalADDeal No. 480 of 1992 Bishram & another Vs. State ofMadhya Pradesh (NowState ofChhattisgarh) & (And connected Criminal Appeal No. 504 of 1992) JUDGMENT For consideration •^ . Sd/- '. Sunis Kusiar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J- <^^Y^^_ ZJ I Sd/- ChiefJustice ^>-/09/20W Post for Judgment : ^/09/2010 Sd/- Sunil Kumar Siaha Judge cj, Vs V ^ ^ HIGHCOURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Rajeev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha,J. £riminalAppeal No. 480 of 1992 APPELLANTS RESPONDENT 1 Bighram, son of Bihanu Rathore, aged 23 years 2 Nokhelal, son of Bihanu Rathore, aged 21 years Both residents of village Bhadora, Dongra Tola, Police Station Gourella, District Bilaspur Versus State of Madhya Pradesh (Now State of Chhattisgarh) And Criminal Appeal No. 504 of 1992 APPELLANTS 1 Ramsharan S/o Domani Pradhan, aged 51 years 2 Phulbai wife of Ramsharan Pradhan, aged 45 years Both R/o Bhadora, Domratolg, P.S. Gourella, District, Bilaspur (M.P.) (NowChhattisgarh) Versus RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh) -(Criminal ADpeals under Section 374(2) of The Codeof Cnminal PrbGedure, 1973) /- AppearanCe^ Mr. Neeraj Mehta.Aduocate for the appellants in Cr.A. No. 480/92. Mr. Vishnu Koshta, Advocate for the appellants inCr.A. No. 504/92 . Mr. Akhil Mishra, Dy. Govt. Advocate for the State in both the .appeals. . .^*."" • . ' Ij-'ti' )![ •r.'-(" '-•%) n Cmninal Appeal Nod. 480 of 92 & 504 of 92 JUDGMENT (0?.09.2010) Following judgment of the Court was delivered by S^unil KumarSinha, J. (1) These appeals have been directed against the judgment dated 9th April, 1992 passed in Sessions Trial No. 177/89 by the Fifth Additional Sessions Judge, Bilaspur. (2) By the impugned judgment, the appellants have been convicted and sentenced in the following manner with further direction to run the sentences concurrently:- Nameof appellant Bishram Nokhelal Ramsharan Phulbai Conviction U/S3021PC u/s3231PC u/s 302/34 IPC u/s 323 IPC u/s 302/34 IPC u/s 323/341PC u/s 302/34 IPC u/s 323/341PC Sentence R.l. forlife R.l. for6 months R.l. forlife R.l. for6 months R.l.forlife R.l. for6 months R.l.forlife R.l. for6 months. (3) /The facts, briefly stated,are as under:- On.,-29.t0.88atabout 9.00 a.m., Ram (PW-1) was going towards in his fields. Lala (Juvenile offender), youngerbrother Qf appellant- Bishram met him on the way. He abused Ram, , on which, Ram said him "You area leader". On this, Lala went to appellant-Bishram and stated that Ram was abusing him. The allegations are that Bishram 'came there and started ·abusi.ng Ram by his mother. Thereafter Bishram assaulted Criminal Appeal Nod. 480 of92 & 504 of 92 Ram by lathi. Appeljants- Ramsharan and Phulbai caught hold of Ram at the time of assault. Appellant- Nokhelal also came there with a tejbjba/. Nokhelal also assaulted Ram by lathi. By that time father of Ram namely Kartik Ram (sinGe deceased) also came there. He was also assaulted by Bishram. Appellant- Bishram gave a lathi blow on his head. When he fell down, the appellants ran away from the placeof occurrence. Ram (PW-l)lodged the First Information Report (Ex.-P/1) in police station Gourella.Ram and his father Kartik Ram both were sent for their medical examination and were examined by Dr. R.K. Gupta (PW-8). The injury reportof Kartik Ram is Ex.-P/9. The injury report of Ram is Ex.-P/10. Kartik Ram received the following injuries on his body:- (i) One lacerated wound of the size of 5 cm x 1 em x bone deep on the left parietal region of skull & (ii) hlaematoma on the upper and lower portion of left eye. Kartik Ram was unconscious. Looking to his critical condition, he was referred for X-ray examination and further treatment to District hlospital, Bilaspur. » . . • Ram (PW-1) received the followinginjuries:- (i) Bruise 3 cm x 1 cm x % cm on the right forearm; (ii) Abrasion 1 cmx 1 cm on the right forearm just belowinjury No.1; (iii) Bruise 5 cm x 1 cmxVz cm on the right portion of back; (iv) Tenderness and c/o pain on the index-finger of rrght hand & '(v') Abrasion 2 cm x % cm on the left elbowjoint. 1» • ; -'&•••. :,Doetor advised for X-ray examination of injury No.4 sustained by Ram. Heopined that the injuriessustained by KartikRam and hLs son Ram both could be caused by hard & blunt object. Criminal ApuealNod. 480 of92 & 504 of92 Kartik Ramdied in the hospita) during the course of his treatment on 5.11.88. An information to this effeet was sent by the hospital authorities vide Ex.-P/14. A merg intimation was registered vide Ex.-P/15. The Investigation Officer reached to the hospital, gave notice (Ex.-P/5) to the Panchas and prepared inquest (Ex.-P/6) on the body of the deceased and the dead body of the deceased was sent for post-mortem examination which was conducted by Dr. Shekhar Chatterjee (PW-9), who prepared his report Ex.-P/13. He notice^that there, were multiple fracturesof fronto-parietal bone and there was also injury on brain membrane. He found a sub-dural haematoma of 1 inch x1 inch x % inch. According to the Autopsy Surgeon, the cause of death was haemorrhage on account of head injury and the injury was sufficient to cause death in ordinary courseof nature. (4) The caseofthe prosecution was based on the eye-witnesses accQunt of Ram (PW-1), Narayan (PW-2). Mayaram (PW-3), who also witnessed the incident according to Ram (PW-1), turned hostile and he did not supportthe case ofthe prosecution. (5) The learnedSessions Judge relying on the testimonies of Ram (PW-1) and Narayan (PW-2), two sons of the deceased, convi6ted and sentenced the appellants as aforementioned. (6) Mr. Vishnu Koshta & Mr. Neeraj Mehta, learned counsel '•i, . ' • . appearing o.n behalf of the appellants, argued that appellant- Bishram alone participated in assault of deceased- Kartik Ram, therefore, he alonewould be responsible for punishmentof his 's? indi'/idual act and the conviction of the other appellantswiththe aid ,;-;)iais, Criminal Aweal Nod. 480 of 92 & 504 of 92 1 of Section 34 IPCwas not justified asthere was absolutely no evidence of sharing of common intention by the other appellants for assault on deceased- Kartik Ram. About appellant- Bishram, it was argued that he dealt with single blow to the deceased and the deceased died on the 8 day of the incident during his treatment, therefore, in the facts and circumstances of the case hisconviction u/s 302 IPC cannot be sustained and he may beconvicted under somelesser Section preferably Part-1 or Part-11 of Section 304 IPC. (7) On the other hand, Mr.Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) Now we shali examine about the conviction of appetlants Nokhelal, Ramsharan & Phulbai u/s 302 with the aid of Section 34 IPC. (10) Section 34 has been enacted on the principleofjointliability in the doing o'f4 criminal act. The section Js only a rule ofevidenee and does not createa substantive offence. The distinctive feature of th'e section is the element of participation in action. The liability of one person for an offencecommitted by another in thecourse of crimwal act.perpetrated byseveral persons arises under seetion 34 ll'l —A11^ :'•} 1. hv. ^^ Criminal Appeal Nod. 480 of92 & 504 of92 if such criminal actis done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of commonintention 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 ofthe moment; butit must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just thesame as if eachof them has done it individually by himself. The existenee 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 thesame or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in orderto attractthe provision. Please seeAnil SHarmaahd others -Vs- State of Jharkhand (2004) 5SCC 679. The Apex Court further clarified that in 1870, Seetion34 was amended by insertion of the words "in furtherance of the common intention of all".after the word "persons" 'and before the word "each", ^ ^soas fo hnake the objectof section 34 clear. The section does not •.^" "~. "... - .. ~ • . .: I. '' y\ -"Jl"—"^^.:^^ ^"^v ^iKi?? ,y ^ .^•y w Criminal AppealNod. 480 of92 & 504 of92 say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 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 bedifficult to distinguish between acts of individual 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 Sinah-Vs-State of Bihar. 2005SCC (Cri} 127 foara 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 intentionof/'a group of persons. But however difficult may be the taSk, the prosecution mugi lead evidence of facts, circumstances and conduct ofthe accused from which their common intention can be safely gathered. In most cases, it has to be inferred from theaet, conduct Qr other relevantcircumstances of the case in hand. Tlie "i. -.;~^-" 1 ^f. '%. s '^ Criminal AmealNod. 480 of92 & 504 of 92 totalityof the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intentionto commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decidedkeeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and notof law. s ^\-: (12) If we examine the case on hand on the above principles, it would appear that the convietion of the above appellants with the aid of Section 34 IPC was not possible in the facts and circumstancesof thecase. Ram (PW-1) was an injured witness, therefore, his evidence was rightly relied by the Sessions Court. According to him, when he had a talk with Lala, Lala went away from the fields and informed his brother- Bishram, who was present in the house of Ramsharan. Thereafter Bishramalone came with a lathi and gave 4-5 lathi blows to him. While Bishram was assaulting Ram,Ram was caught by Ramsharan and his wife Phulbai. In the meanwhile his father Kartik Ram came there and when he tried to intervene, Bishram gave a lathi blow on his head. He further deposed that when^Btehram was assaulting his father, Nokhelal atso came there from his house having'-a p/iarsa in his hands. He any how escaped. While he was escaping, Nokhelal atso gave a lathi blow to him. The above evidence of PW-1 makes it clear that the other appellants did not cdme to the place of occurrence along withappellant- Bishram. •'^ "':' " - • ' .• ' Crimmal Aooeal Nod. 480 of 92 & 504 of 92 hlowever, they reaehed there later on, and theyparticipated in assault of Ram (PW-1), as appellants- Ramsharan and Phulbai eaught hold of him and appellant- Bishram assaulted him by lathi and when after the entire episode, he was running awayform the place of occurrence, he was assaulted by appellant-Nokhelal. The above facts on record would show that there was no plan or meeting of mind of the appellants to commit murder of the deceased. Even there is no evidence to show that the appellants shared common intention with Bishram at the spur of moment to commit murder of the deceased. On appreciationof the evidence', it would appear that the other appellants came there aftereach other and appellant- Nokhelal came there after the assault to the deceased was over. Deceased- KartikRam was not present atthe place ofoccurrence from the very beginning. He reached there when hisson was being assaulted. Therefore, question of common intention, from the very beginning, to commit murder of a person who was not present at the place of occurrence does not arise. After considering the entire act attributed to the above appellants, their conduct and other relevant cii'cumstances which comeout from the evidence of injured eye- witness, itdoes'not appear that a common intention hasdeveloped / ! . even at th.e spur of moment when appellant- Bishram gave single blow to the deceased. Therefore, the conviction of the above appellants u/s 302 with the aid of Section 34 IPC cannot be sustained, as it was not proved that they weresharing common ^ ^ ^intention with appellant- Bishram, either to connmit murder of Kartil( ^' \ 10 Crinnnal Apoeal Nod. 480 of 92 & 504 of 92 Ram or to cause such bodily injury to him, and appellant- Bishram alone would be liable for his individual act of assaulting to the deceased by lathi. (13) Now we shall examine the case of appellant-Bishram. According to the evidence of Ram (PW-1), appellant- Bishram was assaulting him by /a /'and appellants- Ramsharan and Phulbai were holding him. His father came there after hearing hue and cry. Bishram assaulted his father by /a / when he tried to intervene to save him. Therefore, the act of Bishram does not appear to be premeditated and the assault appears to have been made atthe spur of moment. We further note that the incident took placeon 29.10.88and the deceased died in the hospital on 5.11.88 i.e. on the 8 day ofthe incident. We find thatthere is no material to show as to the natureof treatment given to the deceased. Therefore, in the facts and circumstancesof the case, in ourconsidered view, the actof appellant- Bishram would not be punishable u/s 302 IPC and he would be liable for punishment under Part-11 of Section304 IPC. (14) So far as conviction of the appellants u/ss 323 & 323/34 IPC are concerned, that deserve to the maintained. There is ample evidence' tb show that Ram (PW-1) was assaulted by appellant- Ir . Bishram by lathi who received 4-5 simple injuries. Nokhelal also assaulted Ram by lathi. Ramsharan and his wife Phulbai they had caught hold of Ram (PW-1) while he was being assaulted by ^BJshram. Therefore, the learned Sessions Judge has rightly held :!"^ '£Si;S"ii. 1 \.vy 11 Criminal Aupeal Nod. 480 of92 & 504 of92 '^ that Bishram and Nokhelalwere liable for punishment u/s 323 IPC and the remainjng appellants were liable for punishment u/s 323/34 IPC. (15) In the result, the appeals are partly allowed. The conviction and sentencesawarded to the appellants Nokhelal.Ramsharan & Phulbai u/s 302/34 are set-aside. They are acquitted of the above charges framed against them. The conviction and sentence awarded to appellant- Bishramu/s 302 IPC are also set-aside. Instead thereof, he is convicted u/s 304 Part-11 IPC and sentenced to undergo R.l. for 7 years. The conviction andsentences awarded to the appellants u/ss 323 & 323/34 IPC are maintained. 81 vaiai (16) Appellant- Bishram was taken into custody on 30.10.88. He was throughout in jail during the trial and was directed to be released on bail by the High Court on 14.2.96. Therefore, he has already undergone for more than 7 years, 3 months. The remaining appellantsweregranted bailon 14.10.92, therefore, they have also undergone for more than 6 months. The bail bonds of the appellants, therefore, are cancelled and their sureties stand discharged. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge