%,,•^ i'i; E.-:2^., 11 'J !':;1.;!^' t,>.ii?aflaB* te Sf-IStaiWs HIGH COURT OF CHHATTESeARH AT BILASPUR NVISION BENCH: 1-lon ble Shri Ohirendra Mishra <& Hon'ble Shri R.L. Jhanwar, JJ. Criminal Appeal No.51 pf 1992 APPELLANT (In Jail) RESPONbENT Vs t^eepak Sahu, S/o Late Bhairav Prasad Sahu, aged about 27 years, R/o Sikola Bhata, Durg (M.P.) State of M.P. <& Criminal Appeal No.52 of 1992 APPELLANT (In Jail) RESPONDENT Udal Sahu, S/o Late Bhairav Prasad Sahu, aged about 29 years, R/o Sikola Bhata, Durg (M.P.). Vs State of M.P. *, Present: Mr. Abhay Tiwar-i, Advocate for the appellants. Mr. Chandresh Shrivastava, Panel Lawyer- for the State. ORAL JUDeMENT (belivered on 27th January, 2010) Ohirendra Mishra, J. 1. The aforesaid cr'iminal appeals ai"e being disposed of by this common judgment as both these appeals are arising out of the common judgment of conviction and order of sentence dated 29.10.1991 passed in S.T. No.153/91 whereby the learned 5 Additional Sessions Judge, Durg has convicted appellant Udal under Sections 302 <& 307 read with Section 34 of the IPC and appellant Dipak under Sections 302/34 and 307/34 of / the IPC and sentenced both of them with life imprisonment ancTR.I. for five years respectively. 2. 'Case o-f the prosecution, as projected in Para-3 of the impugned judgment, is that on 20.4.1991 at about 21.30 hrs Banshilal (PW-1), his son Amarlal,, brether Shantilal (PW-5) & Laxman (PW-3) were'busy in '- .accounting in their shop. When they heard some noise from the outside, :_^iS3:ZX... •••T^MI.^^^^^^-i-n'7 •:-^--^^'t? '%!. •t ^ .^ s'./ ,rf^*S?:'sl i<i.Stta>s"' Amarlal went out and saw that both the appellants we.re. filthil/nbusing his driver Nandlal. When Amar'lal tried to stop them, they started filthily abusing him also. Banshilal tried to pacify them, on which they started quarrelling with him. Whereupon, Banshilal asked Amar to call the police and at that time accused persons took out knife and gppellant Dipak assaulted Banshilal, whereas appellant Udal assaulted Amar. Both the injured persons were drenched in blood. They were immediately taken to the bistrict Hospital, Durg where Amarlal was declared dead. Since the condition of Banshilal was deteriorating, he was shifted to Bhilai Hospital fr-om District Hospital, Durg. 3. Moolchand (PW-12) recorded Dehati Nalishi of Ex.P-1 on the basis of information given by Banshilal (PW-1). Inquest over the dead body of Amarlal was prepared vide Ex.P-3 and the body was sent for autopsy to District Hospital, Durg where Dr. M.C. Mehnot (PW-11) and Dr. K.K. Mishra conducted postmortem and gave their report of Ex.P-27. Injured Banshilal was also sent for medical examination and his medico legal examination report is Ex.P-7. Site plan prepared by the Investi9ating Officer is Ex.P-SA. Injured Banshilal was adrrtitted in Bhilai Hospital, his bed-head ticket and other tr-eatment papers were taken into possession vide seizure memo of Ex.P-29 and collectively exhibited as Ex.P-16 to Ex.P-26. On the memor-andum (Ex.P-9) of appellant Udal Sahu, blood stained shirt and knife were recovej"ed vide Ex.P-11. Similarly, blood stained full pant, shirt and knife were seized from the appellant Dipak vide Ex.P-12. Articles seized during inv^stigation were sent for chemical examination to FSL and report of the FSL is Ex.R-33." *, 4. After completing usual investigation, charge sheet was filed against the -%'• appellants in the Court of Judicial Magistrate 1 Class, Durg who, in Turn, committed the case to the Court of Sessions Judge, Durg and the same was received on transfer by the learned Additional Sessions Judge rf < for trial. Learned Additional Sessions Judge framed charges under •- §ection 302 and in alternative Section 302/34 of the IPC for causing ,^;>;3'IS'^S^^^^^^; ^ *) •i i-i :<iih-isaiaegt3 .. , , {:>• i'S»SM9 homicidal death of Amarlal and under Section 307 or in alternative under Section 307/34 of IPC for attempting to commit murder of injured Banshilal, against the appellants, who abjured their guilt. The prosecution in order to establish charges a9ainst the appellants examined 15witnesses in all. Thereafter statement of appelldnts was recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. 5. The trial Court after hearing learned counsel for the respectiv^'parties convicted and sentenced the appellants as mentioned in paragraph-1 of the judgment. 6. Homicidal death of deceased Amar-lal is not in dispute. Even otherw/ise from the evidence of injured eyewitness Banshilal (PW-1), who has given dehati nalishi, as also from the other eyewitnesses namely Sudamalal (PW-2), Lakhan (PW-3), Shantilal (PW-5) <& Surajbhan (PW-8) and further on the basis of evidence of t5r. M.C. Mehnot (PW-11), who conducted postmortem and proved the postmortem report of Ex.P-27 in which he found following injuries on the person of the deceased and opined that the deceased died as a result of shock and excessive bleeding and the death is homicidal in nature, the homicidal death of deceased Amarlal is established. . *• 1 • Incised wound of size 1.7" x 0.5" x 0.2" at the left side of chest, transversely placed, 3" belowaxilla over- the chest wall. •,. Incised would of size 1.1" x 0.2" x thoracic cavity 3" below right nipple, ob iquely placed. *) • Injur'ieg are ante mortem in nature and caused by sharp edged weapons 7. Mr. Abhay Tiwari, learned counsel for the appellants vehemently argued that at the time of incident a quarrel took place between Nandlql, driver of the deceased. dnd the appellants. However, when the deceased and •- in.jyred Banshilal tried to intervene, as a result of sudden provocation in :H,i 1 * I ;tinniiBii6!.|itTmiWi7~¥2' .'^-^^.i^.ss.i:;a&«:-^e- „, M.iiiiiiisa8"* ,,:, i.age'iW' the spur of moment, appellant Udal dealt knife blow on the deceased Amarlal, whereas appellant Dipak assaulted Banshilal with knife. Incident occurred suddenly without premeditation and therefore, the trial Court was not justified in convicting both the appellants under Sections 302 & 307/34 of the IPC. The offence committed'by the appellant Udal does not go beyond Section 304 Part-II of the IPC. There is no allegation against this appellant that he assaulted Banshilal and therefor'e, his conviction with the aid of 307/34 is without any evidence. Similarly, conviction of the appellant Dipak under- Section 302/34 of the IPC is also without any evidence as the allegation against him is that he assaulted Banshilal and no overt act is attributed to this appellant for assaulting deceased Amarlal. 8. On the other hand, Mr. Shrivastava, learned Panel Lawyer for the State has supported the impugned judgment. 9. We have heard learned counsel for the parties and also perused the record of the trial Court including the impugned judgment. 10. Conviction of the appellants is based on the evidence of eyewttnesses. Banshilal (PW-1) is an injured eyewitness. He has deposed that on the date and time of incident, he, his brother Shantilal and son Amarlal were sitting in the shop. They heard noise coming from outside the shop. First his son went out and thereafter he also came out. He saw that both the accused persons were hurling abuses to his driver Nandlal and son Amarlal. When he stopped them from doing so, both of them raised their voice and became ready to fight hurling abuses. He asked his son Amav to lodge report in the police station. On this, the accused persons - took out kdivps, Deepak assaulted him on his abdomen and right hand, wher'eas accused Udal dealt a_knife blow on the chest of Amar, who became unconscious and fell on the ground. They were initially taken to the District Hospital and thereafter to Bhilai Hospital. He gave report of Ex.P-1 in Bhilai Hospital. His son Amar died in the District yospital. He has further deposed that he sustained grievous injuries over his ~ .afedomen and remained hospitalized for a month. ^—..A-."'K? ::•'•'•''^•s'^.fsssssss:'-^'-' ^ . ^,i, ,j.a!tiE)<a«fSsl 3 , •;,:>. •H^li^si^H In the cross-examination, he has admitted that they did not have animosity with the accused persons since before. At the time of incident the accused persons were abusing Nandlal. There was no dispute with them. He asked Amar to lod9e report in the police station. Accused persons were abusing Amar and on his arrival they'started abusing him also. He has denied the suggestion that when he reached on the spot, only accused Udal was present. He categorically stated that Dipak attacked on him first. His first assault was on his hand and thereafter he assaulted on his abdomen twice. When he wys being assaulted, Udal assaulted his son Amar. There was tube light on the pole. 11. Dr. R.N. Turre (PW-5) examined Banshilal (PW-1) on 20.4.1991 and proved his injury report of Ex.P-7 in which he noticed one stab injury of the size 3x2 cm x cavity deep, depth to be assessed in OT, loop o-f intestine is protruded out, Bleeding pr-esent and wound is obliquely placed. Stab injury of the size 3cm x 2cm x cavity deep below injury No.l, bleeding present. Stab injury over the right arm of the size Z-ixi *, x muscle deep, obliquely placed, bleeding present. Injuries are caused by hard & sharp object and the patient was admitted in the MSW. 12. Dr. S.D. Diwan (PW-10), Additional Specialist of Sector-9 Hospital, has deposed that Banshilal was admitted in Section-9 hospital on 20.4.1991 at 10.45 p.m. He has proved the bed-head ticket of Ex.P-16 and'stated that bed-head ticket of Ex.P-16 is of Banshilal. Operation was performed on Banshilal because of injuries over the abdomen. His intestines were protruded. These injuries could be fatal. After oper'ation, it was found - that there was''a hole in the intestines. He has proved treatmervt', papers Ex.P-17 to Ex.P-26. In the cross-examination, he has stated that the weapon penetrated deep inside and dissected the intestine and the operation was done on 21.4.1991 from 4.15 to 8.00 in the morning. 13. Thus, from the medical evidence available on record, it is estflblished beyond reasonable doubt that injuries inflicted on the vital part, A, .ilfs: "i^ abdomen, of Banshilal were sufficient to cause his death in the ordinary course of nature. 14. Sudamalal (PW-2) has also deposed that he saw the accused bipak assaulting Banshilal and accused Udal assaulting Amarlal with knife and both of them thereafter fled away. This witness has denied the suggestion that Dipak assaulted Amar and Udal assaulted Banshilal with knife. He also denied the suggestion that Udal assaulted both of them with knife. He knew both the accused persons since before. Similar is the evidence of Lakhan (PW-3), who is Muneem in the shop of Banshilal. 15. Shantilal (PW-5) is brother of Banshilal. He was also present in the shop along with Banshilal <& Amar when the incident took place and he is also witness of the fact that accused persons we.re. hurling abuses at Banshilal <& Amar and when Banshilal asked his son to go to police.station and lodge report, the accused persons took out knife and attacked Banshilal and Amarlal and after assaulting them they ran away. Similar, is the evidence of Surajbhan (PW-8), who was working in the shop of Banshilal at the time of incident. f" 16. From the evidence of the above witnesses, who have been cross- examined at length by the defence, it is established beyond doubt that the accused persons were initially hurling abuses at Nandkumar, driver of Banshilal, and when Amar came out and tried to intervene, they &. started filthily abusing him also. When Banshilal came out and tried to stop them from doing so, they raised their voice, hurled abuses on him also and started fighting. When he asked his son to go to police station and lodge report, both the appellants took out knives, Dipak assaulted Banshilal, whereas Udal dealt knife blow over the chest of deceased Amar. 17. The question for our consideration is whether conviction of these accused persons under Sections 302 & 307 with the aid of Section 34 of the IPC was justified? '• d'- -'-TS -3t: 1 aia :G). ^SSf „„ - raiiWsaa i;,i. luisesesv *) 18. It is true that assault on Amarlal is only attributed to appellant Udal and there is no evidence that Dipak assaulted him. Whereas, assault on Banshilal is attributed to Dipak. However, from the evidence available on record it is clear that when Amar came out and intervened, the accused persons started abusing him filthily and when Banshilal cdme out and stopped them from doing so, the accused per-sons hurled abuses at him in a raised tone and they were ready to fight. Though it is undisputed that there was no quarrel since before between the deceased Amar & Banshilal and the appellants and they inflicted knife bioy/s when Banshilal asked his son Amar to go to lodge report with the police. 19. Section 34 of the IPC provides that when a criminal act is done by several persons, in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. ZO.Thus, common intention necessarily implies a pre-arranged plan. It may be said that when some persons starts with a pre-arranged plan to commit a criminal offence, they may, in the course of committing the minor offence, come to an understanding to commit major offence as well. Such an understanding may appear from the conduct of the person sought to be made vicarious liable for the act of particular culprit or from some incriminatory evidence, but the conduct or other evidence must be such as not to leave any room for doubt in that behalf. The common intention can be formed previously or in the course of occurrence and on the spur of moment. The question of existence of common intention is a question of fact in each case to be decided mainly - as a matter of-''inference from the circumstances of the case. In'certain / circumstances the incident subsequent to the act may also have to be considered in arriving at a conclusion as to whetheror not there was a 'common intention. 21. In the instant case, the appellants started hurling abuses firstly at Amqrlal and thereafter at Banshilal when he tried to stop them from • ctbu^ing his spn and driver. They were ready to fight with him and when *t i»Si Sas'sf^ ^ ^' '^s/e ,<.iF' iBiSfiSS * , Banshilal asked his son to go to police station and lodge report, both the accused persons took out knife, Udal dealt a fatal knife blow on the chest of the deceased, whereas bipak assaulted Banshilol on his abdomen and caused him three grievous stab injuries. After committing the aforesaid crime, both the accused persons together fled from there. It is true that the appellants did not have any previous animosity with the deceased and Banshilal, however, they joined together in hurling abuses at them when they came on the sppt and asked them not to abuse Nandkumar and when Banshilal asked his son to lodge report, and therefore, it can be safely infer'red, that both of them with a common intention to murder Amadal & Banshilal attacked them. 22.It is settled law that intention of an accused is to be gathered from the weapon of offence, the force with which the assault was made,and the portion of the body over which the assault was made. In the instant case, the appellants with a deadly weapon, knife, inflicted injuries over the vital part chest of Amarlal and abdomen of injured Banshilal and therefore, their intention of causing death of these two persons can safely be inferred. 23.In the result, the appeals have no substance, the same deserve to be dismissed and are hereby dismissed. 24.Vide order dated 14.8.2000 appellant Udal and vide order dated 22.11.1999 appellant Dipak was granted bail, however, their bail bonds are cancelled and they are directed to surrender before the trial Court forthwith. Rc.;;han/- Sd/-. ' Dhirendra Mishra,'' Judge Sd/- R.L. Jhaewar Judge * 1 ;tf ^.^-"i ^