HIGH COURT OF CHHATTISGARH, BILASPUR D.B: Hon'ble Shri Rajeev Gupta, C.J., & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT Criminal Appeal No.904 of 2002 1. Juganu Verma @ Shesh Narayan, aged about 30 years, S/o Govardhan Verma, R/o Potikala, P.S. Pulgaon, Durg, Distt. Durg (C.G). 2 Kaushal Verma, S/o Jhadu Ram, aged about 20 years, Occupation Carpenter, R/o Abadipara, Potikala, P.S. Pulgaon, Durg, Distt. Durg (C.G). 3. Dewa @ Daya Ram Sahu, s/o Ramu Sahu, aged 19 years, r/o Kundra Para, Durg, Present Address - Rajiv Nagar Durg (C.G). Vs. State of Chhattisgarh, through Station House Officer, Police Station Pulgaon, Durg, Distt. Durg (C.G). Ap^earance: Shri Yashwant Tiwari, counsel for the appellants. Shri Akhil Mishra, Deputy Govt. Advocate, for the state. JUDGMENT (2^.08.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J, (1) This appeal is directed against the judgment of conviction and order of sentence dated 31.5.2002 passed in Special Case No. 17/2002 by the Special Judge under S.C. & S.T (Prevention of Atrocities) Act, 1989, Durg, whereby the appellant Juganu was convicted u/s 302 IPC and the other two appellants Kaushal Verma and Dewa @ Daya Ram '^^l^^^"'^.^ Cr.A.No.904/2002 (DB) Sahu were convicted u/s 302/34 IPC and were sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of paym.ent of fine to further undergo R.l. for six months, (2) The case ofthe prosecution is that on 07.8.2001 at about 6 p.m., Deo Kumar Chandaniya, since deceased, was going to his village Potikala in the Rickshaw of P.W.1 Bhakla. On the way, when the Rickshaw reached near Kundrapara Potia Chowraha, the appellants came there, forcibly stopped the rickshaw and started abusing the deceased. Saying that they will kill him, they firstly got down the deceased from Rickshaw and thereafter started assaulting him. Appellant Juganu was armed with Gandasa and the other two appellants were unarmed. The deceased ran away towards Khan Hotel, but he was chased by the appellants. The appellants caught him near Khan Hotel (place of occurrence), where he was assaulted by them. Appellant Juganu gave him repeated Gandasa blows, whereas other appellants assaulted by hands and fists. By that time, one Jagdeesh Kosrey (P.W.2) ofvillage Potiakala came overthere. He saw the entire incident and immediately rushed towards village Potiakala to tell the events to the family members of the deceased. He met Dilip Banjare (P.W.10). The story was disclosed to him and then the First Information Report, Ex.P.1, was lodged in Police station by Jagdeesh Kosrey (P.W.2) at about 6.30 p.m. The deceased was taken to District Hospital, Durg, from where he was referred to Sector-9 hospital of Bhilai Steel Plant, where he was declared dead and the Merg intimation, Ex.P.9, was sent from B.S.P. Hospital to the concerned jDOlice station, on which, the Mergwas recorded under Ex.P.10. Jf 1 ^h Cr.A.No.904/2002 (DB') ^ (3) On 8.8.2001, the Investigating Officer gave notice (Ex.P.4) to the Panchas and prepared inquest (Ex.P.5) on the body of the deceased. The dead body of the deceased was sent for postmortem to the District Hospital, Durg, vide Requisition Ex.P.22. The postmortem examination was conducted by Dr. Neeraj Shinde (P.W.3), who prepared his report Ex.P.2. He noticed the following external injuries: 1) Incised wound over the left side forehead 10 cm x 2.5 cm x bone deep extending from middle of forehead to lateral border of left eyebrow on which fracture of frontal bone was there; 2) Incised wound on the lateral part over the xygomatic region 2.5 cm x2 cm x bone deep; 3) Incised wound on the right side forehead over nasal bridge 5.5 cm x 2.5 cm x bone deep; 4) Incised wound over right xygomatic process about 5cm x3 cm x bone deep havihg fracture of maxillary bone; 5) Lacerated wound over right cheek about 4 cm x 3 cm x muscle deep; 6) Lacerated wound over the mandibular region about 4 cm x5 cmon the right side; 7) Incised wound over the upper lip 2 cm x 1.5 cm; 8) Incised wounds over the chin 2 cm x 1.5 cm & 1.5 cm x 1 cm piercing through the lower lip causing damage to lower incision; 9) Lacerated wound over left lower 1/3 of the arm about 3cmx 1.5 cm x muscle deep. 10) Ineised wound over deltoid region i.e. size 10 cm x 1cm along-with several multiple abrasions and another incised wound 1cm x 1cm along with linear abrasions 4 cm, 10cm & 13 cms in length respectively and just beside it, there was also an incised wound 2 cm x 1 cm. .-•—TFVtt ^;.-"-% fyah ~%. 1 ./ s '-isf"^ Cr.A.No.904/2002 (DB) 11) Incised wound on the left index finger at terminal pharynx2cm x2 cm; 12) Incised wound over right hand posterior part 7 cm x 1.5 cm extending upto base of thumb; 13) Incised wound on the right palmar aspect 7 cm x 5 cm with bone fracture at Ist pharynx left ring & little finger; 14) Incised wound about 3 cm x 1 cm x bone deep over left occipito parietal region & 15) Incised wound 5 cm x2 cm behind right ear, bone deep. Incised wound 4cm x2 cm x bone deep parallel to above injury. (4) • On internal examination, the autopsy surgeon found that there were blood clots on the front portion of brain, and at various places in the stomach, small intestine and duodenum. He also found fracture below the orbit and occipital bone. He opined that the injuries were ante-mortem in nature and the cause of death was shock and hemorrhage due to antemortem injuries. (5) In further investigation, the site plan was prepared under Ex.P.8 and the blood stained soil, plain soil and two teeth along with some portion of the jaw were seized from the place of occurrence under Ex.P.18. Appellant Juganu Verma was taken into custody and his memorandum u/s 27 of the Evidence Act was recorded vide Ex.P.11 and the weapon of offence i.e. blood stained Gandasa was seized under Ex.P.12. The seized Articles were sent for their chemical examination to the Forensic Science Laboratory, Raipur, from where the Report Ex.P.28 was received. r^''^'sy^!s'- ^^ss:;'sw^sy. -r-wmT '^, Cr.A.No.904/2002 (DB) According to the F.S.L. Report, the blood stains were found on various articles including the weapon of offence. (6) After completion of the usual investigation, the charge sheet was filed in the Court of Judicial Magistrate, First Class, Durg. The matter was committed and it was received for trial by the special Judge, Durg, who after conducting the trial, convicted and sentenced the appellants as aforementioned. (7) Mr. Yashwant Tiwari, learned counsel for the appellants argued that the two eye witnesses namely Bhakla (P.W.1) and Jagdeesh Kosrey (P.W.2) are not reliable witnesses and their testimonies should be disbelieved. He also pointed out some discrepancies in Ex.P.16 & P.16-A which are the requisition form for examination of the deceased' when he was alive and the reference of the deceased by the Doctor to Sector-9 Hospital. He also argued that as per the arrest memo of the appellant Juganu, it has been shown that he was disabled from both the legs; therefore, it was not possible for him to commit the offence in such a manner. In this regard, he referred to other evidences also. Lastly he argued that so far as the other two appellants are concerned, their conviction with the aid of section 34 IPC cannot be justified. (8) On the other hand, Mr. Akhil Mishra, learned counsel for the State opposed these arguments and supported the Judgment and order passed by the trial Court. (9) We have heard learned counsel for the parties at length and have also perused the records of the sessions case. '^^^^<^-*Ki^r^s'ff.''f-s^-sft^^^E^?^i^K'--^^:d:S^£^'a-^'^--:^^:^ fi I '^BSSs 1 Cr.A.No.904/2002 (-DB) ^y ^ ''^^"' ^ (10) Bhakla (P.W.1) is a Rickshaw Puller. He deposed that he was knowing all the appellants as two of them i.e., Juganu and Kaushal were the residents of village Potia and the third one was the resident of another village. The deceased Deo Kumar Chandaniya was also known to him. On the fateful day, he was taking him to village Potia in his Rickshaw. As soon as they reached near Kundrapara chowk, all the 3 appellants forcibly got down Deo Kumar Chandaniya from his rickshaw. One of the appellant slapped him also. He has categorically stated that one of the appellants was having some iron article measuring about a hand size. Looking to all this, he took his rickshaw to Potia and narrated the incident to his family members. In his cross examination, many questions were put to him but nothing material could be brought on record to show that he has not giving a correct version of the incident, to the extent, he witnessed. However, it comes in the cross examination that deceased Deo Kumar Chandaniya was a lawyer and, in fact, Deo Kumar Chandaniya was slapped by one of the appellants and he has wrongly deposed that he was slapped. (11) P.W.2 Jagdeesh Kosrey deposed that deceased was a lawyer, the appellants and deceased both were known to him. On Tuesday at about 6 p.m., he was going from Potiakala to the market. When he reached near Kundrapara Chowk, he saw that Deo Kumar Chandaniya was going towards Potia in the rickshaw of Bhakla (P.W.1). His rickshaw was stopped on the way by these appellants. Appellant Juganuwas armed with Gandasa. All the 3 appellants started abusing Deo Kumar saying that he harasses by making reports against them. He saw that all the 3 appellants started beating Deo Kumar after pulling ^ ' w_ ~<s:\ \'\ H^^?"';?-^; 'r '• <;.' ^^sssSSS^" Cr.A.No.904/2002 (DB) down him from rickshaw. The appellant Juganu assaulted Deo Kumar with Gandasa on his face, chest & shoulder and the blood started coming out. Seeing all this he rushed towards village Potiakala for informing the family members of deceased. On the way, he met Dilip Banjare (P.W.10). Thereafter, they returned back to the place of occurrence, but the appellants were not there. hle further added that appellants Kaushal and Dayaram were assaulting the deceased by hands and fists. Dilip Banjare suggested him to lodge the report, on which, he went to Police station Pulgaon, where he lodged report, Ex.P.1. In his cross-examination, he admitted that the deceased was a resident of his village, but he denied that he was his relative. About the number of injuries on the face, he deposed that he could not see that how many injuries were there on the face. He has denied the suggestion that since the deceased was his friend and was inimical to the appellants, therefore, he was also inimical to the appellants. He has very categorically deposed that he had seen the occurrence from a distance of 5 mts. About the weapon, he stated that it was an iron Gandasa but he cannot say as to whether that was having an iron grip or wooden grip. He was also cross examined on the point that appellant Juganu was handicapped. He admitted that he was handicapped and was having some difficulty in walking but he used to walk without support. He can walk even carrying some articles. He very specifically admitted that Juganu used to run the bicycle. He denied the suggestion that Juganu was unarmed, and uttered that he was armed with Gandasa. In appreciation, we find that the version of this witness is corroborated by the evidence of Dilip Banjare (P.W.10) who deposed that on 07.8.2001, at ab6ut6 p.m., Jagdeesh Kosrey ^ Cr.A.No.904/2002 (DB) (P.W.2) met him near Shiv Mandir. He came there on Bicycle. Jagdeesh told him that appellants Juganu, Kaushal & Dayaram are assaulting the deceased at Potiakala Chowk. Shiv Mandir is at a distance of half Kilometer from that place. He rushed to the place of occurrence. Jagdeesh (P.W.2) also went there on his bicycle. They saw that some persons were taking Deo Kumar on a Tempo to the Hospital. He had seen injuries on the head, neck & arms of the deceased which were bleeding. Deo Kumar was firstly taken to District Hospital. Durg, from where he was taken to Sector-9 Hospital, Bhilai. (12) If we look into the evidence of these 3 witnesses, it does not appear that the version of eye-witness Jagdeesh Kosrey, P.W.2, was not reliable. As stated by the witnesses the deceased was a lawyer and he was daily coming from village Potia to District Court. Bhakla (P.W.1), rickshaw puller was resident of his own village, therefore, he used to go on his rickshaw. On the fateful day also when the deceased was going in the rickshaw of Bhakla (P.W.1), he was stopped on the way by the appellants and on some previous animosity regarding some report made by the deceased, he was snatched from rickshaw of P.W.1, who looking to the situation, immediately rushed to the village. By that time, P.W.2 Jagdeesh Kosrey also reached there and saw the incident. He rushed to the village for help and when he returned back along with Dilip Banjare (P.W.10), they could not see the appellants or the deceased at that place because by that time the deceased ran towards the hotel for saving his life. If we look into the map, it would appear that the hotel is at a distance of about 114 ft., where the deceased fell down and the blood stained soil and two teeth along with y^. 3^?? ?%:-^s!'sis-i^?s^''. Cr.A.No.904/2002 (DB) some piece ofjaw were seized. The version of P.W.2 Jagdeesh Kosrey is supported by the contents of First Information Report, Ex.P.1, which was lodged by him within half an hour in the police station which is at a distance of 3 Kms. The F.I.R., is named and this witness has given complete description of the incident in the F.1.R. We do not find any infirmity in the evidence of P.W.2 which is duly corroborated by the evidence of P.W.1 Bhakla and P.W.10 Dilip Banjare as also by the prompt F.I.R., which contains the details of the incident. Therefore, the arguments advanced by learned counsel for the appellants regarding testimonies ofthese witnesses cannot be accepted. (13) About the discrepancies in requisition form, learned counsel for the appellants submitted that in reference memo Ex.P.16A, it is mentioned that Deo Kumar was brought by Somu and Jagjeet and in requisition form it is written that he was sent through the police, therefore, these documents are unreliable. We have gone through these documents and we are of the view that such discrepancies in the requisition form and the reference memo is not of much importance. Sometimes, the doctors do right the names of relations or the other persons who accompany the injured instead of writing the name of Police Officer. There appears to be nothing unusual when on a police requisition, the doctor has written that he was brought by Somu and Jagjeet s/o Vijay. More-over, merely on this count, the entire story of the prosecutiDn which is based on eye witness account cannot be thrown out. Even if we keep apart this evidence, the story relating to assault by the appellanfsto the deceased is intact and the testimonies of the witnesses, on this point go un-affected, -^^ ss'assl '&-..^~ I '"SB^fe,. 1 ~awiSSSi a '^l ^ >,.. ^^./ ^&^^ ^-f " 10 Cr.A.No.904/2002 CDB) '4C) (14) About appellantno.1 being the handicapped person, learned counsel referred to his arrest memo Ex.P.20. No doubt, it has been mentioned in the arrest memo,in Column-7, which is meant for injury if any sustained by the accused, as "Dono Pair Lakwa" and in Column No.9 about the physical deformities, it has been mentioned as "Dono Pyron Se Apan^' but no other evidence in this regard has been brought on record. Even in the cross examination of the investigating officer, it was not asked from him as to what was the physical condition of the appellant Juganu at the time of his arrest. Merely, on the basis of the endorsements in Column 7 and 9 of the arrest memo, as above, it cannot be inferred that this appellant was either unable to stand or walk as is argued by learned counsel for the appellants. The material particulars about the nature of handicap, degree of paralysis etc., are not there on record to establish that this appellant was facing such physical disability, that he was not able to stand or walk and in fact he was not able to commit such an offence. More-over, if we look into the evidence of P.W.2, it would appear that in his cross-examination he has only deposed that appellant Juganu is having difficulty in walking but he walks without the stick and sometimes he takes the help of stick. Even he can walk along with some article and he uses to run the Bicycle. If this clarification about the physical condition of the appellant is there on record, the argument that on account of physical disablement he was unable to commit the offence, cannot be accepted. (15) Now the question arises about the conviction of the two appellants with the aid of section 34 IPC. Section 34 has been enacted on the principle ofjoint liability in the doing of a criminal act. The section ^i i 'i'^:?: g 1 %. ^•S-ffie!s '%.^"1^ 11 Cr.A.No.904/2002fDB') is only a rule of evidence and 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 criminat act perpetrated by several persons arises under section 34 if such criminal act 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. 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 of the moment; but it must necessarily. be before the commission of the crime. The true contents of the section are that if two or more persons intentionalty do an act jointly, the position in law is just the same as if each of them has done it individually by himself. 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 with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. Please see Anil Sharma and others -Vs- State of Jharkhand (2004) 5 SCC 679. The Apex Court further clarified that in 1870, Section 34 was amended by insertion of the words "in furtherance of the common intention of all" after the word "persons" and -v^^^^^ 12 Cr.A.No.904/2002 CDB) % before the word "each", so as to make the object of section 34 clear. The section does not 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 be difficult 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. (16) It was further held by the Apex court in the matter of Dani Sinah -Vs- State of Bihar. 2005 SCC fCri) 127 (para 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 a]l 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 most cases, it has to be inferred from the act, conduct or other relevant circumstances ofthe case in hand. The totality ofthe 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. |Hli:irl[? ti|T" -•SsnV.TITVV 13 Cr.A.No.904/2002 ('DB) The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. (17) If we look into the evidence of P.W.1 Bhakla, in this context, it would appear that all the 3 appellants had forcibly pulled out the deceased from Rickshaw and while they were doing so, appellant Juganu was armed with a weapon. P.W.2 Jagdeesh Kosre has also stated that ~all the 3 appellants stopped the Rickshaw near Potiakala Chowk and appellant Juganu was armed with Gandasa, thereafter all the 3 appellants started abusing the deceased and started beating him. Appellant Juganu assaulted the deceased with Gandasa whereas other two appellants assaulted him with hands and fists." The size of Gandasa was long. It was 51 cms in length and 7.5 cms in width. It is nobodies case that appellant no.1 had some weapon with him and it was not in the knowledge of other appellants. Since this weapon was openly kept by Juganu in his hands, the other appellants were having full knowledge about this weapon and if they had gone along-with appellant no.1 to stop rickshaw of the deceased and to assault the deceased, it can be held that they were sharing common intention with appellant no.1, which was none else but an intention to cause the murder of the deceased. This intention is further strengthened by the postmortem report of the deceased which shows that the deceased received as many as 15 incised wounds on the vital parts of his body. It is, therefore, clear that though the acts of the appellant no.1 and other appellants may be different in character, but it was actuated by one and ^- '^^-.- 14 Cr.A.No.904/2002 ('DB) • the same common intention for which appellants no.2 & 3 shall also be responsible. In view of this, the argument of learned counsel for the appellants that conviction of appellants no.2 & 3 with the aid of section 34 IPC was notjustified, can also not be accepted. (18) For the foregoing reasons, we do not find any substance in this appeal. The appeal is liable to be dismissed and is accordingly, dismissed. __ _- Sd/- Sunil Kumar Sinha Judge Chief Justfce Rao