an mww x. ‘ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. & .‘3 Hon’ble Shri Sunil Kumar Sinha J. (Criminal Appeals under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: r Mr. Neeraj Mehta, Advocate for the appellants in Cr.A. No. 480/92. Mr. Vishnu Koshta, Advocate for the appellants in Cr.A. No. 504/92 Mr. Akhil Mishra, Dy. Govt. Advocate for the State in both the appeals. , Criminal Appeal No. 480 of 1992 APPELLANTS 1 Bishram, 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 GoureHa, District Bilaspur . Versus RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh) And i 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, Domratoia, P.S. Gourella, District, Bilaspur (M.P.) (Now Chhattisgarh) ‘ Versus RESPONDENT s‘ State of Madhya Pradesh (Now State of Chhattisgarh) Criminal Appeal Nod. 480 of 92 & 504 of 92 JUDGMENT (01092010) E Following judgment‘of the Court was delivered by Sunil Kumar Sinha, J. (1) These: appeals have been directed against the judgment dated 9’“ April, 1é92 passed in Sessions Trial No. 177/89 by the Fifth Additional Sessions Judge, Bilaspfir. t (2) By the impugned judgment, the appeliantsu have been convicted and sentenced in the following manner with further direction to run the sentences concurrently:— (3) The facts, briefly stated, are as under:- On 29.10.818 at about 9.00 a.m., Ram (PW-1) was going towardsin his fields. Lala (juvenile offender), younger brother of appellant- Bishram met him on the way. Herabused Ram, on which, Ram said him “You’are a leader”. On this, Lala went to appellant-Bishram and stated that Ram was abUsing him. The allegations are that Bishram came there and started ‘ abusing Ram by his mother. Thereafter Bishram assaulted l / . Name of Conviction Sentence appellant Bishram u/s 302 IPC R.l. for life u/s 323 IPC R.l. for 6 months Nokhelal u/s 302/34 IPC R.l. for life u/s 323 IPC R.l. for 6 months Ramsharan u/s 302/34 IPC R.l. for life ‘ u/s 323/34 IPC R.l. for 6 months Phulbai u/s 302/34 IPC R.l. for life s. u/s 323/34 IPC R.l. for 6 months. Criminal Appeal Nod. 480 of 92 & 504 of 92 Ram by lathi. Appellants- Ramsharan and Phulbai caught hold of R‘am at the time of assault. Appellant— Nokhelal also came there with a tabbal. Nokhelal also assauited Ram by lathi. By that time father of Ram namely Kartik Ram (since deceased) also; came there He was also assaulted by Bishram. App‘ellant— Blshram gave a lathi blow on his head. When he fell i‘down, the appellants ran away from the place of occUrrence. Ram (PW-1) lodged the First Information Report (Ex.-P/1) in police stationtGourella. Ram and his father Kartik Rarn‘‘b‘oth were sent for their medical examination and were examined by Dr. R.K. Gupta (PW-8). The injury report of Kartik Ram issEx.-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 cm x bone deep on the left parietal region of skull & (ii) Haematoma 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 Hospital, Bilaspur. Ram (PW-1) received the following injuries:- (i) Bruise 3 cm x 1 cm x 1/2 cm on the right forearm; T‘.‘ -\ Doctor advised for X-ray examination of injury No.4 sustained by Ram. He opined that the injuries sustained by Kartik Ram and hats son Ram both could be caused by hard & blunt object. l l l (ii) Abrasion 1 cm x 1 cm on the right° forearm just below injury No.1; (iii) Bruise 5 cm x 1 cm x 1/2 cm on the right portion of back; (iv) Tenderness and c/o pain on the index-finger of right hand & (v) Abrasion 2 cm x 1/2 cm on the left elbow joint. 4 Criminal Appeal Nod. 480 of 92 & 504 of 92 Kartik Ram died in the hospital during the course of his treatment on 5.1 1 .88. An information to this effect was sent by the hospital authorities vide Ex.-P/14. A merg intimatiqn was registered vide Ex.—P/1 5. The Investigation Officer reached to the hospital, gave notice (Ex.-P/5) to the Panchas and ppared inquest (Ex.-P/6) on the body of th deceased and th dead body of the deceased was sent for post—mortem eamination,which was conducte by Dr. Shekhar Chatterjee (PW—), who prepared hi report Ex.-/1 3. He noticetthat there wfe‘muitiple ractures of fronto-parietai bone and there was alo injury on brain membrane. He found a sub-dural hematoma of. inch x 1 inch x 1/2 inch. According to the Atopsy Suron, the cause of death was haemorrhage on acount f head iury and the injury was sufficient to cause dath in ordinary course of nature. (4 The case of the prosecution was based on the eye-witnesses ) accoun of Ram (PW—1), Narayan (PW-2), Mayaram (PW-3), who t also winessed the incident according to Ram W-1), turned hostile and hedid not support the cas of the prosecution. ? e (5 e learned Sesions Judge relying on thefestimonies of Ram (PW-1) and Narayan (PW-2), two sons of the deceased, convicted and sentenced the appellants as aforementioned. (6) Mr. Vishnu Koshta & Mr. Neeraj Mehta, learned counsel appearing on behalf of the appellants, argued that appellant- Bishram alone participated in assault of deceased- Kartik Ram, therefore, he alone would be responsible for punishment of his \ g individual act and the conviction of the other appellants with the aid re e e x d 9 s P e f s a 1 u ge c o nj e t (P l ) Th s ~ l 5 Criminal Apgeal Nod. 480 of 92 & 504 of 92 w of Section 34‘ IPC was not jLlstified as there was absolutely no j evidence of soaring of common intention by the other appellants for ‘ assault on deoeased- Kartik Ram. About appellant— Bishram, it wasa argued that he dealt With Single blow to the deceased and the deceased died on the 8m day of the inCIdent during his treatment therefore in the facts and Circumstances of the case his conViction u/s 302 IPC cannot be sustained and he may be conVicted under some lesser Sec‘tion preferably Part-l or Part-ll t. of Section 304 IPC. i (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 Cou'r‘t. ' s at length (9) Now w g. (8) We have heard the learned counsel for the partie and have also perused the records of the sessions case. e shall examine about the conviction of appellants Nokhelal, Ramsharan & Phulbai u/s 302 with the aid of Section 34 IPC. (110) Section 34 has been enacted on the principle of joint iiabiiity in the doing of a. criminal act. The section is only a rule of evidence 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 ' es under section 34 criminal act perpetrated by several persons aris r» i and i r/ L rg ‘ 6 @ Criminal Aggeal Nod‘ 480 of 92 & 504 of 92 furtherance of a common ‘ntention i of Direct proof of ch intention d from the Circumstances appearing from the if such criminai ract is done in crime. ithe persons who join in committing the common intention is seldom available and therefore su ‘ can only facts be of inferre the case and the proved circumstances. in order to proved prosecution has to e of common intention the at there bring home the charg h by evidence whether direct or Circumstantial th 7 estabiis persons to commit f minds of ali the accused was plan or meeting o d with the aid of Section 34, be e for which they are charge the offenc must necessarily it prearranged or on the spur of the moment but it e commission of the crime The true contents of the an act iomtly, is just the same as if each of them has done it be before th persons intentionally do g section are that if two or more the position in law n intention essential element for individually by himself. The existence of a commo amongst the participants in a crime is the application of this section lt is not necessary that ffence the jointly acts of must the several persons e or charge identically Similar The acts may be differen d With commisSion of an o tin be the sam een actuated by one and the same racter but must have b common intention in order to attract the pro cha Vision. Please see Anil SCC 67_9_. Section 34 was . mmOn the word each The section does not gharma and others —Vs- State of Jharkhand (2004) 5 The Apex Court fuither clarified that in 1870 amended by insertion of the words in furtherance of the co intention of all” after the word “persons and before the object of section 34 cl so as to make ear. ‘j say “the cmmon intention of all”, nor does it say “and intention common t a”. Under the provisions of Section 34 the essence of oi ll u the liabilityis to be found inthe existence of a common intention animating the accused leing to the doing of a criminal act in ad furtheranc of such intention. As a result of the application of e; rinciples nunciated in Section 34, when an accused is convicted p e under sectn 302 read With section 34, in law it means that the V accused is llable for the act which caused death of the deceased in i the same manner as if it was done by him alone. Te provision is h intended t meet a case in which it ma be difficult to distinguish o y between acts of individual members of a party who act in furtherance of the common intention of all or to prove eactly what ‘ x part was taken by each of them. (11) It wa further held by. te Apex court in he matter of —- hat to constitute ommo intention, it is necessar that intention of each one of the accused be know to the rest and shared by them. n Udoubtedly, it is difficult to prove even the intention of an individual ad, therefore, it is all the more difficult to show the common n intentin of a group of persons. But however difficult may be the task, the prosecution mUst lead'sevidence of facts, circumstances l and conduct of the accused from which their common intention can l, be safely gathered. In most cases, it has to be inferred from the act, l conduct or other relevant circumstances of the case in hand. The .... Criminal Appeal Nod. 480 of 92 & 504 of 92 o . io i ‘ r l ‘ s h t Dani 1 Singh V§ State of Bihar, 2005 SCC (Cri) 127 (para 20) t cn ’ y n o QiminaluADDeal Nod. 480 of 92 & 504 of 92 i (12) If we ‘e‘gmine’ the case on hand on the above principles, it would appear that the conVIctIon of the above appellants w1th the aid of Section 34 IPC was not poss:ble m the facts and Clrcumstances of 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 Bishram, who was present in the house of H Ramsharan. Thereafter Bishram alone came with a /athi and gave ~5 lathi blows to him. While Bishram was assaulting Ram Ram was caught by Ramsharan and his Wife Phulbai ln the meanwhile his father Kartik Ram came there and when he tried to intervene Bishram gave a Iath/ blow on his head. He further deposed that when Bishram was assaulting his father Nokhelal also came there from his house haVing a pharsa in his hands He any how escaped While he was escaping Nokhelal also gave a /athi blow to him The 1 makes it clear that the other appellants did the case Ram (PW- informed his brother- " above eVidence of PW- l ‘ \ not come to the place of occurrence along with appellant— Bishram. 4 Criminal Apgeal Nod. 480 of 92 & 504 of 92 assault of Ram (PW-1) as appellants— caugh e \ater on, and they participated in However, gthey reached ther Ramsharan and Phu!bai Bishram assaulted h1m by Iathi unning away form the aulted by appellant—Nokhe|al. The as no plan or meeting of mlnd of the appellants to commlt murder of the decease there ls no evrdence t der of moment to commit mur t hoid of hlm and appellant- and when after the entire episode, he was r above facts on record would show that there w t o show that the appellants shared common intention With Bishram at the spur of ould appear that the deceased. On appreciat each other and appellant- helal came there after the assault to the deceased was over. Deceased— Kartlk was being hed there when his son d. Even lon of the eVldence lt w w the other appellants came there after Nok the place of occurrence Ram was not present at e very beginning. He reac from 1th ntion, from the very uestion of common inte assaulted Therefore q on who was not present at the beginning to commit murder of a pers place of occurrence does attributed to th circu not arise. After considering the entire act .t. e above appellants, their conduct and other relev mstances which come o 'ntention has developed witness, it does not appear that a common l d Therefore the conviction of the above s 302 With the aid of Section 34‘IPC cann ant ut from the evidence of injured eye- Bishram gave single jeven‘at the spur of moment when appellant— blow to the decease f‘i appellants ul aring common roved that they were sh Bishram either to commit murder of Kartik ot be \ sustained as lt was not p pellant— \fintention wrth ap \ \ @‘5 10 Criminal Agpeal Nod. 480 of 92 & 504 of 92 Ram o‘rvto cause such bodily injury to him, and appellant— Bishram alone iwould be liable for his individual act of assaulting to the rdeceased by Iathi. (13) Now we shall examine the case of appellant— Bishram. According to the evidence of Ram (PW-1), appellant— Bishram was assaurlting him by lathi and appellants— Ramsharan and Phulbai were holding him. Hisvfather came there after hearing hue and cry‘ Bishram assaulted his father by Iathi when he tried to intervene to save hint. Therefore, the act of Bishram does not appear to be premeditated and the assault appears to have been made at the spur of moment. We further note that the incident took place on 29.10.88 and the deceased died in the hospital on 5.11.88 i.e. on the 8‘“ day of the incident. We find that there is no material to show as to the nature of treatment given to the deceased. Therefore, in the facts and circumstances of the case, in our considered view, the act of appellant- Bishram would not be punishable u/s 302 IPC and he would be liable for punishment under Part—ll of $ection 304 IPC. (14) So far as conviction of the appellants u/ss 323 & 323/34 IPC are concerned, that deserve to the maintained. There is ample evidence to show that Ram (PW-1) was assaulted by appellant- ‘ Bishram by Iathi ‘who received 4-5 simple injuries. Nokhelal also . assaulted Ram 'by Iathi. Ramsharan and his Wife Phulbai they had caught hold of Ram (PW-1) while he was being assaulted by l Bishram. Therefore, the learned Sessions Judge has rightly held E w' 7 i l U @> '11 Criminal A1$pea1 Nqd. 480 of 92 & 504 of 92 that Blshram and Nokhelal were hable for pumshmen e lal, Ramsharan & t u/s 323 IPC and the remaining appeHants were liable for punishment u/s 323/34 ' IPC. eals are partly allowed. The conviction MP (15) §ln the result, the app and sentences awarded to the appellants Nokhe Phull’bai u/s 302/34 are set—aside. They are acquitted of the above charges framed against ,them The conviction and sentence Bishram u/s 302 IPC are also set-aSIde awarded to appellant- lnstead thereof, he is convicted u/s 304 Part—ll IPC and sentenced to ears. The conviction and sentences awarded to undergo R.l. for 7‘y the appellants u/ss 323 & 323/34 IPC are maintained. (16) Appellant— Bishram was taken into custody on 3 the trial and was directed to be was throughout in jail during d on bail by the High Court on 14.2.96. Therefore, he has already undergOne for more than 7 years, 3 months. The remaining ellants were'granted bail on 14.10.92, therefore, they have also 6 months. The bail bonds of the undergone for more than therefore, are cancelled and their su reties stand discharged. 0.10.88. He release app gt. appellants, Vi // i.“ . Suml KN“ rsmha L, Sd/f. _ Chief Justice k vatti