HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Sunil Kumar Sinha & Hon’ble Shri T.P. Sharma, JJ. Criminal Appeal No. 933 of 2003 Kake @ Manjiptfngh & others Si Versus The State of Chhattisgarh JUDGMENT For consideration Sdl- Sunil Kumar Sinha Juge ’7’55 /10/2008’ HON’BLE SHRI JUSTICE T.P. SHARMA Sdl- T. P. Sharma Judge %‘W Post for Judgment :20 11 0/2008 Sdl-» Sunil Kumar Sinha Judge d 1’ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Sunil Kumar Sinha & Hon’ble Shri T.P. Sharma, JJ. Criminal Appeal No. 933 of 2003 APPELLANTS 1. Kake @ Manjit Singh, S/o. Lakhbir Singh @ Amarnath Singh, Caste W L. Sikha, Aged about 24 years 2. Babli @ Karamjeet Singh S/o. Lakhbir Singh‘;Caste Sikha, Aged 2g ye'ars 3. Ishwar Pal @ Guddu, S/o. Ramlal Pa! Gadariya Aged about 22 years 4. Ramesh Kumar @ Dauwa S/o. Ramlal Pal Gadariya Aged about 21 years All R/o. Dabarapara, Behind South School, P.S. Bhilai — 3 District Durg (C.G.) Versus RESPONDENT The State of Chhattisgarh Through, P.s. Bhnai — 3, Distt. Durg (C.G.) (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Uttam Pandey, Counsel for the appellants. Mr. U.N.S. Deo, Govt. Advocate, forthe State. Mr. M.P.S. Bhatia, Counsel forthe Complainant/Objector. JUDGMENT (20.10.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. .3) (1) This appeal is directed against the judgment of conviction and iorder of sentence dated 25.7.2003 passed by the 8th Additional District i& Sessions Judgev(F.T.C.), Durg in Sessions Trial No. 382/2002, .whereby, the appellants have been convicted u/ss 302/34, 323/34 & i i 1 M ‘ 2 324/34 l.P.C. and sentenced to undergo imprisonment of life, imprisonment for 3-3 months & imprisonment for 4-4 months respectiveiy with a further direction to run the sentences concurrently. Criminal Appeal No. 933 of 2003 (2) AII the appellants were charged u/ss 302/34, 323/34, 324/34 & 294 l.P.C. Appeilants- Kake & Babli were also charged Uls 25 (1 B) (b) read with Section 4 of the Arms Act. v r (3) FactsJbriefly stated,are that Baramdevi (PW-2) is a resident of Dabarapara North. On 6.2.2001 at about 10.00 p.m., she was present in her house along with- her son Fantush (PW—3), grand-son Gulab $ Singh (PW-9), deceased- Omprakash, Subhash (PW-10) & Ashok. At x that time a boy came to their house and called Fantush. Fantush & his friend Omprakash went along with the boy towards Dabarapara school. After sometime, Baramdevi (PW-2) heard commotion from school side. She along with her other son Mathura Singh (PW-4), grand-son Gulab Singh (PW-9), neighbour Subhash (PW—10) and Ashok went towards that place. When they reached to the house of appellant— Ishwar, they '0- saw that appellant— Babli, Kake etc. were beating her son Fantush and Omprakash with lathis. When they tried to intervene, the said persons started abusing them and caused injuries to them also. The further case of the prosecution is that the accused persons were also armed with sword and in the incident, along with deceased-"Omprakash, Baramdevi (PW-2), Fantush (PW-3), Gulab Singh'(PW—9), Ashok & Mathura Singh (PW—4) also received injuries. Omprakash was admitted in the hospital,’where he died during the course of his treatment on ‘f 10.2.2001. The injuries sustained by the other injured. persons were asimple. Since a dangerous weapon was used for causing hurt to . l V . r/ v j 3 Criminal Appeal No. 933 of 2003 Mathura Singh (PW-4), therefore, charges u/ss 324/34 IPC were framed and for injuries to Baramdevi, Fantush, Gulab Singh & Ashok, charges u/ss 323/34 IPC were framed along with the principle charge of 302/34 IPC for murder of deceased- Omprakash. (4) Learned Sessions Judge, after recording the evidence of the prosecution witnesses and the defence witness— Nilima (DW-1)} convicted the appeilants as aforementioned. However, they were acqyitted of the charges framed uls 294 IPC and Section 25 (1B) (b) read with Sectfon 4 of the Arms Act. $ (5) The conviction of the appeilants is based upon the testimonies of eye witnesses namely Baramdevi (PW-2), Fantush @ Babaram (PW- 3), Mathura Singh (PW-4), Gulab Singh (PW—9) & Subhash (PW-10). Another eyewitness namely Ku. Lalti Rajput (PW-13), rand-daughter g of Baramdevi, was disbelieved by the trial Court. rf? (6) Mr. Uttam Pandey, learned counsel‘ for the appellants, has not , disputed the homicidal death of deceased— Omprakash. Moreover, it comes in the evidence of Autopsy Surgeon— P.K. Agrawal (PW-17) that the deceased has received as many as 13 injuries and there was blood ‘clotting in skull and there were fractures of right frontal & parietal bones. He also observed that ribs No. 3 to 7 of both side were also fractured and injuries sustained were antemortem in nature. The death was homicidal which was caused due to shock and hemorrhage as a result of injuries sustained by the deceased. The postmortem report is EX.-P/40. i Criminal Appeal No. 933 of 2003 (7) Mr. Pandey has also not challenged the conviction of the appellants u/ss 323/34 & 324/34 IPC. Challenging their conviction u/ss 302/34 IPC, he argued 'that all the eye witnesses, relied by the trial Court)are interested witnesses as they are close relatives. He argued of that on appreciationLtheir evidence, it would appear that all of them had reached to the place of occurrence after the assault to the deceased was over. His further submissionwas that, in fact, they had gone to the house V of one of the appellants and they had begun the quarrel. He very speCificaIly argued that after the marpit was over with the deceased, the‘injured witnesses had reached to the place of occurrence, and‘ then, there was a tight between them and the " appellants, which was a subsequent and different event. Therefore, the common intention of the appellants which has been held to be proved for the offences punishable u/ss 323/34 & 324/34 IPC would be only for these particular offences and even if it is held that some of the appellants had participated in assaulting the deceased, that would be their individual act for which the others will not be held responsible with the aid of Section 34 IPC because they had shared a common intention for the subsequent act only for which they have been punished under lessor Sections. x (8) On the other hand, learned counsel for the State and Objector opposed these arguments and supported the judgment passed by the trial Court. (9) We have heard the learned counsel for the parties at length and have l also perused the records of the sessions case. 5 Criminal Appeal No. 933 of 2003 V“ (10) So far as the witnesses being the close relatives, the law is well settled. The Supreme Court has said time and again that the relationship is not a factor to affect credibility of a witness. it is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such a case, the Court has to adopt a careful approach and anfalyze evidence to find out whether it is cogent and credible. The Supreme Court has categorically said in the u f matter of~Namdeo —Vs- State of Maharashtra, 2007 AIR SCW 1835 that “a witness who is a relative of deceased or victim of the crime $ cannot be characterized as ‘interested’. The term ‘interested’ ._ postulates that the witness has some direct or indirect ‘interest’ in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized as an ‘interested’ witness. He is a ‘natural’ witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the ‘sole’ testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The Apex Court also referred to the decision rendered in the matter of {'5 Harbans Kaur and another —Vs- State of Haryana, 2005 AIR SCW l 2074, in which, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, ‘x \ : reason has to be shown when a plea of partiality is raised to show that .\, a i i l 6 Criminal Agpeal No. 933 of 2003 the witnesses had reason to shield the actual culptit and falsely lmplicate the accused”. Therefore, it cannot be said that since the eye witnesses were the close relatives of each other, their evidence shall not be relied on or that itself would be a disqualification attached to their evidence. Moreover, Mr. Pandey could not point out that the eye Witnesses were relatives of the deceased. lt’s a case in which the eye witnesses are relatives of each other. (11) f Now we shall appreciate the evidence of eye witnesses. PW-3, Babaram.@ Fantush, deposed that when hef along with Omprakash, went to the house of Kake for asking about marpit with Bhagirathi in an earlier incident, appellants- Kake & Babli assaulted him with sword. He I has categorically deposed that appellants- Eabli & Ramesh had assaulted the deceased with dandas, due to which the deceased received injuries on his hands, legs, chest and ribs. Both fell down there on the ground. He has very specifically mentioned in his examination-in-chief, that after this his mother Baramdevi (PW-2) and niece Ku. Lalti Rajput (PW-13) reached to the scene of occurrence and they were also assaulted with danda by Ramesh & Babli. This witness has not stated about the participation of the other two appellants i.e. Kake @ Manjit Singh & lshwar Pal @ Guddu so far as assault to deceased- Omprakash is concerned. On the basis of evidence .of this ;witness, it is ciear that Baramdevi (PW-2) & Ku. LaitixRajpuf (PW-13), freached to the scene of occurrence when the assault to the deceased :was over and the deceased and this witness Babaram @ Fantush tNere lying on the ground. 3r W5 l l l i t — , , ‘r ' ' “8% “my.“ w 7 Criminal Apgeal No. 933 of2003 (12) PW-4, Mathura Singh, who is the other son of Baramdevi (PW- 2), was also examined as an eye witness. He admitted vide Para-5 of his cross-examination that he, in fact, had not gone to the place of o‘ccurrence and he had not seen the occurrence. (13) PW—9, Gulab Singh, deposed that all the 4 appellants were assaulting his uncle- Subhash and deceased- Omprash. Appellants- Kake & Ishwar Pal were armed with sword and appella’nt— Ramesh and Bahligwere armed with lathis. If we examine his evidence in light of evidence of Baramdevi (PW-2), it would appear that Baramdevi depos‘ed that she along with Gulab Singh (PW-9) was in her house and when they heard commotion from school side, both went to the place of occurrence and saw the incident. This makes clear that Gulab Singh had reached to the scene of occurrence along with his grand-mother Baramdevi (PW-2). Fantush (PW-3), son of Baramdevi, has deposed that Baramdevi had reached to the scene of occurrence when they were lying of the ground. Therefore, it can safely be inferred that Gulab Singh also reached to the scene of occurrence later on. (14) The above situation is further clarified by evidence of Subhash (PW—10). He deposed that when he heard the commotion, he went towards the scene of occurrence along with Gulab Singh (PW-9) and when they reached there, they saw that Fantush (PW-'3)»r”_and the deceased were lying on the ground; (1‘5) ln appreciation of evidence of these witnesses, we find that, in fact, the deceased and injured Fantush (PW-3) were the only persons present at the scene of occurrenCe when the deceased was being 8 @ assaulted and all other witnesses namely— Baramdevi (PW-2), Mathura Singh (PW-4), Gulab Singh (PW-9), Subhash (PW-10) and Ku. Lalti Rajput (PW-13) reached to the scene of occurrence after the assault to the deceased was over. In this state of affair, the testimonies of these witnesses, so far as they‘ retate to assautt given to the deceased, are doubtful and on the soie testimony of Babaram @ Fantush (PW-3), if we examine the case of the prosecution, it would be clear that the prosecution could only establish that deceased- Omprakash was Criminal Appeal No. 933 of 2003 a. assaulted by appellant— Babli & Ramesh and the two appellants namely— Kake @ Manjit Singh & Ishwar Pal @ Guddu had not £ participated in the assault made to the deceased. (16) So far as conviction of all the appellants‘u/s 302 with the aid of Section 34 IPC is concerned, we do not find any evidence to that effect. We may explain the law on the point by quoting the portions of Para— 6 & 7 of the judgment of the Supreme Court rendered in the matter of Aizaz & ors. —Vs- State of U.PI, 2008 AIR SCW 5765. “6. Coming to the plea relating to Section 34 the Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. lt is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go withPa', common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must ‘ be the responsibility. All are guilty of the principal \\ offence, not of abetment only. ln a combination of this \.\ 9 Criminal Appeal No. 933 of 2003 kind a mortal stroke, though given by one of the parties, is deemed in the eye of Iaw to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit i i i i murder is not Iiiable, though he has joined his companion i i to do an unlawfui act. Leading feature of this Section is the element of participation in action. The essence of Iiability under this Section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. " ‘3 The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about ta particuiar result {See Ramaswami Ayyanagar and Ors. V. State of Tamil Nadu (AIR 1976 SC 2027)}. The participation need not in all cases be by physical presence. in offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a pre— arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence: Unless common intention and participation are both present, U this Section cannot apply. 7. ‘Common intention’ implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a "\\\ distinct previous plan is not necessary to be proved. The \ 10 Criminal Appeal No. 933 of 2003 / /3 common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. {See Krishna Govind Patil V.State of Maharashtra (AIR 1963 SC 1413). In Amrit Singh and Ors. V. State of Punjab (1972 Crl LJ 465 SC)} it has been held that"bommon _ intention pre-supposes prior concert. Care must be tak‘en not to confuse same or simiiar intention with .s common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention; it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Magsogdan and Ors. V. State of U.P. (AIR 1988 SC 126) it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. ln most cases it has to be inferred from the act, conduct or other relevant’ circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the \mkw‘w‘. a», facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. in Bhaba Nanda Barma and Ors. V. The State of Assam (AIR 1977 80-2252) it was observed that prosecution must prove facts to justify an inference that ail participants/“of the acts had shared a common intention to commit the criminal act which was finaliy committed by one or more of the participants. Mere presence of a person at the time of‘commission of an offence by his confederates is not, in itseif sufficient to bring his case within the purview of Section 34, unless community of ‘designs is proved against him (See Malkhan and Anr. V. State of Uttar Pradesh (AIR 1975 SC 12). In the Oxford English Dictionary, the word “furtherance" is defined as ‘action of helping fonNard’. Adopting this definition, Russel says that “it indicates some kind of aid or assistance producing an effect in future” and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russel on Crime 12‘“ Edn. Vol. i pp.487 and 488). ln’Shankar/al Kacharabhai and Ors. V. The State of Gujarat (AIR 1965 SC 1260) the Supreme Court has interpreted the word “furtherance” as ‘advancement or promotion’.” x (17) the appellants u/s 302 IPC. In our considered view, the case of appellant No.1 and 3 - Kake @ Manjit Singh & lshwar Pal @ Guddu deserve consideration. According to evidence of"'PW—3,'"Babaram @ Fantush, they had not participated in assaulting deceased- Omprakash and there is no evidence to suggest that they can be held responsible for the act committed by appellant No.2 and‘4 — Babli @ Karamjeet Singh & Ramesh Kumar @ Dauwa with the aid of Section 34 IPC. 11 Criminal Appeal N0. 933 of 2003 In view of all this, we are unable to sustain the conviction of all (18) In the result, the appeal is partly allowed. The conviction and sentences aWarded to the appellants u/ss 323/34 & 324/ 34 IPC are maintained. The conviction and sentences awarded to appellant No.2 and 4 - Babli @ Karamjeet Singh & Ramesh Kumar @ Dauwa u/ss 302/34 IPC are also maintained. The conviction and sentences awarded to appellant No.1- Kake @ Manjit Singh & appellant No.3— lshwar Pal @ Guddu u/ss302/34 are set aside.’Appellant No. 1 and 3 are acquitted of the charges framed against them u/sg302/34 IPC. "si‘ (19) Th‘e appellants are in jail since 12.2.2001 and 22.2.2001, therefore, appellant No. 1 and 3 namely - Kake @ Manjit Singh & Ishwar Pal @ Ghddu shall be released, forthwith, if not required in any " other case and appellant No. 2 and 4 namely - Babli @ Karamjeet Singh & Ramesh Kumar @ Dauwa shall undergo the entire sentences imposed against them. However, they shall be entitled‘to set-off the period already undergone by them. V"; Sdl- Sunil Kumar Sinha Sdl- Judge . T. P. Sharma Judge 0 Criminal Appeal N0. 933 of 2003