'-•?"4'}'^L*<E<^sy^^-^5?< IV° ^w^. / C-^ 141//0 •tf3?' •^s' HIGH GOURT QF CHHAmSGARH ATBILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEVGUPTA, CJ. HON'BLE SHRI SUNILKUMAR SINHA, J. Cr.lVI.P. (P.Ri No. 3927 of2009. Appellant Respondent The State pf Chhattisgarh Through Distriet Magistrate, Korea (C.G.), •'->. VERSUS Shivprasad, S/o Shri Katvariram RajWade, Aged about -43 years, Occupation Driver, R/o Village Ghughra, P.S. Sonhat, Distt. Korea (C.G.). ';.^=as-^ ADDlicattonfbrarantbffeavetaaDD^IunderSection378J3t and MemorandumofADDealu/s 378(1) oTCodeofCriminal Proeedure. Present: Shri Kishore Bhaduri, Additional Advocate General for the State/ petitioner. Order >nd (22na February,2010) The following order of the Court was passed by Rajeev Gupta, C.J. Shri Kisbore Bhaduri, learned Addltional Advocate General, forthe State/petitioner is heardon I.A.No.01/2009, an application forcondonation of the delay in filing the petition under Section 378 (3)of Code bf Criminat Procedure (for short 'Cr.P.C.'). 2) On due consideratjon of the submissions of learned Additjonal Advocate General and the grounds taken in the application, we are satisfied that the petifioner/ State has ;:^^ 3% 1 H. ( succeeded in showingsufficient cause for the delay in filing the petition underSection378 (3) of Cr.P.C. 3) I.A.No.01/2009, therefore, is allowedand the delay in flling the petition under Section 378 (3) of Cr.P.C. is hereby condoned. 4) Shri Kishore Bhaduri, learned AdditionalAdvocateGeneral is heard on the question of grant of teave to appeal against the acquittal of respondent/ accusect-Shivprasad. 5) Police Charcha, District Korea charge-sheeted respondent/ accused Shivprasad and hts co-accused Bagarsai for the alleged commission of offence punishable under Section 307 read with Section 34 of Indian Penal Code (for short 'I.P.C') on the accusation of their having attempted at the life of complainant - Sachidanand on 09.11.2006. 6) The trial Court on a close scrutiny of the entire evidence led by the prosecution at the trial held that theprosecution though could establish the charge punishable under Section 307 of the I.P.C. against accused Bagarsai.the prosecution evidence fell short of establishing the charge under Section 307 read with Section 34 of the I.P.C. against respondent/ aecused Shivprasad. The trial Court, therefore, whileconvicting accused Bagarsai under Section 307 of the I.P.C. vide impugned judgment dated 18.08.2008, acquitted respondenV accused Shivprasad of the charge under Section 307 read with Section 34 ofthe I.P.C. 7) ' Shri Kishore Bhaduri, leamed Additional Advocate General vehemently argued that thetrial Court has erred in recording the acquittal of respondenV accused Shivprasad though the evidence ..^: c ^ ^\ ^•^ \^\ ,' o led by the prosecution at the trial was more than sufficient to establish the charge pUnishable'under Section 307 read with SectiQn34ofthe|.P.C.againstrespondent/accusec|Shivprasad. 8) In the First Information Report lodged by injured/Gomplainant - Sachidanand, name of respondenVaccused Shivprasad was not mentioned af all. The prosecution case itself is that accused Bagarsai was driving the Jeep and he dashed the Jeep against complainant - Sachidanand in an attempt to kill him. The prosecution case against respondent/ accused Shivprasad was that he was also present in the said Jeep when his co-accused Bagarsai dashed the Jeep against complainant - Sachjdanand. The complajnant has not offered any explanation for pmissfon of the name of respondent/ accused Shivprasad in the First Information Report. Even assuming that respondenV aecused Shivprasad was accompanying acGused Bagarsai in the said Jeep at thetime of the incident, his participation with the aid of Section 34 of the I.P.C. cannot be held to have been proved by the prosecution in yiew ofthediGtumoftheApex Court in the case of Javed AIam Vs. State ofehhattisgarh and another, reported in (2009) 6S.C.C.—450,wherein itwasobserved inparas21 to 23: "21. The other question is the applicability of Section 34 IPC. "5. Seetion 34 has been enacted on theprinciple ofjoint liability in the (commission) of a criminal act. The section is onlv a rule of evidence and does not create a substantive offence. The distinctive feature of the sectioo Is theelement of participation in aetion. r :r^l The liabillty ofone person for an offence committedby another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal aet is done in furtherance of a common intention of the persons who join in committing the crime. Direct 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. Inorder to bring home the charge 6f common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the pffence for which they are charged with theaid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of thesection are that iftwo or more persons intentionally do an act jointly, the position in law is just the same as ifeachofthem has done it individually by himsetf. Asobserved in Ashoft Kumar v. State of Punjab (1977)1 SCC 746: 1977 SCC (Cri)f77: AIR 1977 SC 109, 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 withcommission of n offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and thesamecommon intention in orderto attract the provision. 6. The section does not say 'the common intentlons of all' nor does it say 'an intention common to alt'. Underthe provisions ofSection 34the essence of the liability is to be founded in the existence of a ~"al<»> v<"\ l^ common intention animating the accused leading to the (commission) of a criminar act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is coovicted under Section 302 read with Section 34, in law it means that the accused is liable forthe act which caused death of the deoeased in the same manner as if it was donebyhim alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual membersofa party who act in furtherance of the common intention of all or to prove exactty what part was taken by each of them. As was observed in CAmta Pulla Reddy v. State ofA.P. 1993 Supp.ff) SCC 134 : 1993 SCC (Cri) 875 : AIR 1993 SC 1899 Section 34 is applicabfe even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused." The above position has been highlighted in Chimanbhai Jagabhai Patel V. Stete of Gujarat, (2009) 11 SCC 273 22. There is no evidence, much less credible, which has been salvaged from the onslaught on the witnesses which suggests that there was any meeting of minds, because everythlng appears to have happened suddenly. The evidenceof PW 8 on which the prosecution has placed strong reliance for the purpose of attracting Section 34 IPC gave prevaricating statements so far as others are eoncemed, though her statement issufficient to fasten guilt on Samar Vijay Singh. 23. Considering the background facts it is clear that Section 34 has no application. That being so, while dismissing the appeal filed by Samar Vijay "1 ii^~y s rA -aas^ 6 (^ Oz u o Singh, the conviction recorded qua otheraccused persons has to be set aside which we direct. They shall be released Trom custody forthwith unless required to be in custody in connection with any other case." 9) On due consideration of the submissions of learned Additlonal Advocate General; the fmdings recorded by the trial Court leading to acquittal of respondenV accusedShivprasad; the nature of the overt-act attributed to respondent/ accused Shivprasad; the fact that the complainantin his First Information Report did not even mention the presence of Shivprasad at the time of the incident; and in view of the above quoted dictum of the Apex Court in the case Javed Alam Vs. State of Chhattisgarh (siipra), we do not find any inflrmity in the findings recorded by the trial Court teading to acquittal of respondent/ accused Shivprasad, which may warrant interference by this Courtin this appeal against acquittal. 10) For the foregoing reasons, the petition filed under Section 378 (3) of Cr.P.C. against the acquittalof respondent/ accused Shivprasad failsand is hereby dismissed summarily. Sd/- ChiefJustice Sd/- , Sunil Kumar Sinha Judge subbu