l I/lIllllHIHHHWIN/WI a g1 ; XII‘189/(Ia11) C J P R/7 gasob " NLéQL ‘ Fdxher’s mu ReSIdence W®wom> Sentenced to 3 ._. c c: _ Under sectxon; f’ ‘E V, ¥ i : l) t 1s explained to the prisoner that 1f he states or wxshes to be represented by legal practmoner the Appelate court Will not proceed wrth the case for seven days “mess the legal paactitioher appears doest‘not within seven appears earlier. If the legal practitioner appear days, he may not be heard at all If the prisnor Vstates that he ' does not wish to be rep.esented by legal practltloner, the court may proceed at once Wich the case and Will not be obliged to give at hearing to any legal practitioner who should appear I r l . l ‘l. Date of Application for copy of Judgement ’20 i ‘90 - § ate of which copy received 3. Date 0:11 whkh Appeal sent A ‘ 5) 2 o0 4. Whcl‘h1er the prisoner .Cvishes ,10 be regre<tmed or not- (yEQ l z l No 40/44 l L ‘ Name 3 33 g l §J_e( t ‘edinvwy‘ici‘ i sigi mowed $3) ‘ Clo 19o / Forwarded to the CHIFF JUDICIAL MAGISTRATE £01) 19/) l together Wit. a copy of Judgement and order passed in% ilie case for fawur oi transmission r to the propcrr Appelliate Court l l £4] , e t // EDate of receipt 1n C I M S Omce . ’ ,_ ,_ ‘Date of receipt of record to accmnpmy the ) - mi lThe memo (if Appeal of the Appellate Court )) I c 6i /c :i iii/9 a . . Dated. Hi" girt3a igs ‘ ° Forwarded to the " i r - A l i t l ‘ Date alireceipt in Appellate Court M HIGH COURT OF CHHATTISGARH : BILASPUR Criminal A eal No. 374 OF 1990 0 Munna alias Raghunandm’l Vs; The State of Madhya Pradesh (now State of Chham'sgarh) & Criminal Apgeal No. 552i 1990 ,4 Raju Vs. t The Sfata of Madhya Pradesh (now State ofChhattisgzu‘h) Cox-am :- ‘Hon’ble Shri Fakhruddin, Acg. Chief Justice 85 Hon’ble Shri Dilip Raosaheb Deshmukh, J. Shri Surendra Singh, learned Sr. Advocate with Mr. Shl‘i M.P.S.Bha1:ia, P.L. for the State. counsel for the appellant; Neeraj Mehta, J u D G M E N 'r (Delivered on 53‘. @3005) Per Dilig Raosaheb Deshmukh, J. Criminal Appeal No.374/1990 filed by Munna ahas Raghunaxxdan dimcted against the judgment dafed 30th Jantiary 1990 rlrtlivemd by Shri B. K. Shrivastava, Addi. the appellant Raju was convicted under Section 302 I.P,C, for committing murder of Santosh Kumar and the appellant~Munna @ Raghuuand convicted under Section 302 read with Section 34 of the l.P.C. for committing murder of Santosh Kum sentenced to i imprisonment for life. and CriminalAppeal No.552/ 1990 filed by Raju are 0 Sessions Judge to Sessions Judge, Bilaspur in sessions case No.64/ 1988 whereby 8.11 \VaS i-\ or in furtherance of common intention shared with Raju and both § 2. (lo-accused Dinesh Jaiswal who was also prosecutsd under Section 302 read with Section 34 of the I.P.C. alongwith tha above namsd appellants was absconding throughout the trial and was proceeded under Soction 299 of tho Coda of Criminal Procoduro. Appellant-Raju after undsrgoiug sentence was released from Central Jail, Raipur on 18.12.2002 on the eve of Guru Ghasidas Jayanti after receiving special remission of sentence. 3;‘ ‘ Admittedly, appellants—Raju, Munna and co—accused Dinesh worked in Manav Mandir Hotel situated at Gaurela and shared the house at Singhal Tola, Gaurela with Dhaneshwar P.W.2, Balram P,W.7 and the. deceased Santosh. 4. The prosecution story is that in the intervening night of 13th 8n 14th November 1987 Santosh was sleeping in the room at the place where appellant—Raju used to sleep. Due to this there was a quarrel between the appellants, co-accused Dinesh Jaiswal and the deceased Santosh. In the intervening night of 14th 82; 15th November 1987 the deceased Santosh alongwith Dhaneshwar P.W'.2 and Balaram P.W.7 was sleeping in the room. At about‘ 2.00 A.M. the appellants Raju, Munna with cos-accused Dinesh came there. Appellant Raju kicked Santosh whgwas sleeping; A scuffle ensued between Santosh and Raju during which Santosh fell down. The appellants and co-accused Dinesh beat Santosh with fists. At this juncture, the appellant-Raju took out a. knife and. brutally ’assaultedziS‘antosh several times at the chest, back and hand. Santosh died at the spot instantaneously. Dhaneshwar P.W.2 and Balram P.W.7 saw the occurrence. When they tried to intervene, the appellants threatened to beat them. They shouted. G Petla P.W.1 came to the spot. Tha appellants and co-accused Dinesh ran away. 5. Dhaueshwar P.W.2 lodged F.I.R. EX.P.1 at 8&0 A.M. in RS. Gaurela situated two kilometars away from the place of occurrence. Sub—Inspector RC. Mishm wrote. marg intimation EX.P.7, reached the place of occuntnce and prepared inquest EX.P.9 and sent the. dead body of Santosh for postmortem. Dr.M.P.Khare P.W.5VWE0 ‘ 1‘ a conducted the autopsy found the following injuries on fhe body of Santosh : . Punctured wound situated on the back on tight ‘ side at a point 1,5 cm. lateral to mid line and 13.5 cm. from inferior angle of the right scapula, wound of entry placed vertically, 2.5 cm. in length aml 0.75 cm. in width in centre nanow'mg at ends to form acute angles. Edges were clean cut inverted and stained with blood. Wound communicated with right abdominal cavity at a point 3 cm. right~wards from vertebral column between 9th 85 10m Iib posterior‘ly. Clotted blood was present in the surrounding muscles along the course of the wound which was obliquely lateral and forwards. u lncised wound situated 9.5 cm below the injury No.1 on the right side of back, measun'ng 2 E/z - cm. in length & 0.75 cm. in width, narrow at both ends. Edges were clean cut, stained with blood. It was 6 cm. deep passing lateially and downwards through the muscles of right lower back. Clotted blood was present on the surmunding muscles. 1n Incised wound situated over posterior fold of left oxilla, situated 17 cm. distant from tip of left shoulder. It measured 2 1/2 cm. in length and 3/ 4m cm. in width in centre, narrowing at acute angles on both ends. Edges Were clean cut, invelt and stained with blood. Sun‘ounding muscles had large amount of clotted blood. iv. Punctuxed wound situated over right anten'or chest 1 cm. below 8r. medial to right nipple. It measured 1/2 cm x 0.75 cm, placed horizontally. nanow at both ends to form an r- dd acute angles (measurements 2.5 cm, x 0.75 cm.) edges were clean cut, inverted stained with blood, Wound communicates with right sided thoracic cavity making its way into they lung parenchyina. (Middle and lower lobes).‘ Huge amount of clotted blood was present in right anterior intercostal muscles. v. Through 65 through Incised wound over left upper arm, wound of ently situated over medial aspect of left upper arm in its middle measule 2 3/a cm. X O.7§Vcm. edges were clean cut, inverted stained uithblood. Wound of exit over lateral aspect of left upper arm situated 15 cm. distant ‘ from tip of left shoulder, edges were clean cut, ‘* ‘ everted blood stained stu‘rounding muscles certained blood clots. Dr. KEai‘e P.W.5 opined that all the injuries mentioned above were ante-mortem in nature and were caused by a sharp cutting object with a long cutting edge. Cause of death was opined to be. shock and haemorrhage due to punctured wounds (No. 1 8:, No.4). Sub—Inspector RC. Mishra seized a bloodstained knife from th place of occurrence vide Ex.P. 12. After completion of investigation, the appellants alongwith co-accused Dinesh were prosecuted. .3 under Section 302 read with 34 of the I.P.C. 6. The appellants-Mum and Raju abjured the guilt, pleaded innocence . and led no ev1dence . 1n . defence. 0 The prosecution . examinedpas many as eight Witnesses. The trial Judge relying on the testimony of Petla RW. 1, Dhaneshwar P.W.2, Balram P.W.7 as also the medical evidence of Dr. M.P.Khare P.W.5, convicted and sentenced the appellants Munna and Raju as shown in para 1. 5,. 7. Senior AdvocatgfShI-i Surendra Singh, learned counsel for the appellantsMmaL’argued lL, that there was no cogent and reliable evidence on record to hold that the appellant-Munna had shared the common intention with the appellant Raju for committing *1 “i Kxa 1 e murder of Santosh. The incident had occurred in the very late hours of night. It was pitch dark inside the room. The appcilants Jua‘v had, after fmishing work, goue’xthe place of occurrence which was their homeJto sleep. There was no previous enmity or motive for the. appellants to cause the death of Santqsh. An incident of a tn'vial nature had suddenly sparked oo‘ the occurrence when the appellant Raju suddenly took out a knife and stabbed Sairtos u ‘Kumar. It was wholly an isolated act of Raju without‘i'eany \pn'or concert with co-appellant Munna. The evidence of Balram P.W.7 that at the‘time when Raju was-repeatedly assaulting Santosh, the appellaiit Munna was holding Santosh was wholly unreliable since no such statement was made to the police by Balram P.W.7 under Section 161 Cr.P,C. or by Dhaneshwar P.W.2 in the. F.I.R. Ex.P.1. Reliance was placed on Mitter Sen, and others v. State of U.P., reported in ALR. 1976 S.C. 1156, Rambilas Singh and others v. State of Bihar reported in A.I.R. 1989 S.C. 1593 and Kas mi?“ ' ‘ Singh vi State ofPunjab reported in A.LR. 1994 S.C. 16531. So far as the appellant—Raju was concerned, it was urged that the appeal is only of academic interest since appellant‘Ra‘iu was released after undergoing sentence upon grant of remission by the State Government. On the other hand, Shri M‘P.S.Bhatia, learned Panel Lawyer for the State arguing in supyort of the impugned judgment placed reliance on Ramesh Sinah alias Photti v. State of AP, reported in A.I.R. 2634 S.C. 4545 and contended that the fact that appellant Munna continued to hold the deceased without making any ehbit to prevent co—accused from further attacking would lead to the irresistible and inescapable conclusion that he or . “halyarcw” Lo 6 é? Shared the common intention with co-appellant Raju to cause death of Santosh. , 8V W: have heard the rival contentions and perusea the record . ofsessions case No. 64/ 1988. The. testimony of Balram P.W.7 and Dhaneshwar P.W.2 clearly goes to Show That a day prior to the 1 incident there was a sudden quanel at night upon an incident of i trivial natuxe during which the appellants-Raju and Munna had u sewed with Santosh’. Baliam P.W.7 has testified that next day, late at night while they were sleeping inside the room the apyellants l3aju and Munna alongwith Dinesh came at about 2.00 A.M. and started quarrel with Santosh. Appellant—Raju started aSsaulting Santosh with a knife while the appellant Munna and (Ho—accused Dinesh held Santosh. They tried to liberate Santosh but the appellants threatened that if they intervened they would also be beaten. The teshmony of Balram P.W.7 that the appellaht~Raju had assaulted Santosh by knife finds corroboration from the F‘.I.R. lodged by Dhaneshwar P.W.2 on 15.11.1987 at Police Station‘ Gaurela and also from the medical evidence of Dr. M.P.Khare P.W.5. Nothing has been elicited in the cross- examination of Balram P.W.7 by the appellant~Raju so as to discredit this part of his testimony that the appellant—Raju had assaulted Santosh by knife. The testimony of Dr. Khaie P,W,S leaves no manner of doubt that the deceased Santosh was assaulted several times brutally on vital parts by the knife resulting in his death. due to shock and haemorrhage as a result of the two punctured wounds received by him on vital parts. The presence of Balram P.W.7 at the scene of occurrence is natural. s _ ‘i-x He has absolut€ly no animosi’Ly against the appellants and had no mason to falszly implicate them. V 9. Having considered the evidence of Balram P.W.7 and Dr‘ M.P.Khare P.W.5 and the F‘.I.R. Ex.P.1, we are of_the considered opinion that the leaned trial judge has Iightly convicted and sentenced the appellant-Raju under Section 302 I.P.C. for commiting murder of Santosh. ; 10; The only point which requires our consideratioL; ifr this appeal now is whether the appellant-Munna can be held constrtmtively liable for the act of appellant-Rant. So far as Dhaneshwar P.W.2 is concerned, he was present at the scene of occurrence but did not state that the appellant-Munna had held Santosh to facilitate assault by Raju by a knife. According to him, appellants-Raju, Munna and co-accused Dinesh were all fighting with Santosh. The place of occurrence was the habitat ofxtah appellants and they had gone there to sleep as usual. It appears ,\‘ that a trifling incident which had occurred a day earlier suddenly got sparked off when Raju’s leg hit the deceased who‘started abusing him. Balram P.W.7 has nmvhere stated that the appellant-Raju had entered the room brandishing the knife in his hand. The F:1.R. lodged by Dhaneshwar P.W.2 nowhere stated that the appellants had held Santosh while Raju was assaulting Santosh by knife. Therefore, the testimony of Bali‘am gr‘i P.W.2 that the appellant Minna and co-acctised. Dinesh had held Santosh While the appellant-Raju was assaulting Santosh by knife is nothing but an improvement in the prosecution story which fails to inspire confidence. This is an important omission in the statement k/ em v of .Balmm P.W‘7. Sub-Inspector R.C.Mishra P.W.8 has in cross- ‘examination clearlv stated that Balram had in his statEment ‘ Ex.D—2 reconied under S€ction 161 Cr.P.C. did not state that tha appellant-Munna and co-accusad Dinesh had held Santosh while i the appellant—Raju was assaulting him by knifa 11. The. appellants had no previous enmity with ths deceased Santosh. It appears that art incident of tn'vial nature. occurring a day prior to the. occumence during which the appellan.t~Raju had “ . stepped on the feet of Santosh who was sleeping suddenly sparked off the occurrence on the next date when Raju kicked Santosh who . was sleeping» The pmsecution evidence does not reveal that the appellant~Munna had the knowledge that the appellant—Rain had a knife in his possession. The evidence also does not show that the appellant—Raju had entered the room brandishing the. knife. It appears that the appellant—Raju suddenly got agitated to such an extent that he took out the knife and stabbed Santosh several times on vital parts‘ This act of Raju was his isolated act without any pn'or concert with the co-appellant Munna. 12. In Ramesh Sinqh alias Photti v. State of AP. reported in 5 A.I.R. 2004 S.C. 4545 it was observed by the Apex Court that common intention essentially being a state of mind, it is very difficult to procure direct evidence to prove such intention. In most cases it has to be inferred from the act like the conduct of the accused or other relevant circumstances of the case. An inference can be gathered. by the manner in which the accused arrived at the scene, mounted the attack, determination and conceit with which attack was made, from the nature of injuries caused by one or ‘vx soum of the appallants. The contributory acts of the persons who were not responsible for the injury can further be inferred fmm the subsequent conduct after the attack. Even an omisSion on the part of the accused can mdlcate the shanng of the common lutenuon the totahty of the mrcumstances must be taken unto conslderatlon 1n arnvmg at the conclusmn whether the accused had the common intention to commit an ott‘ence of whjcH'/t]1ey could be convicted. M . 13. In the case of Ramesh Singh (supra), it was further held that the fact that the accused continued to hold the deceased all alone Without making any effort to prevent co-accused from further attacking would lead to the irresistihle and inescapable conclusion that the accused persons shared the common intention With the co-accused. However, in this case, there is no reliable evidence on record to show that the appellant-Munna had held the deceased 3 Santosh at the time when the appellant-Raju had assa ilted ‘ Santosh by the knife In View of the omlssion 1n the statement. under Sectlon 161 C1 PC as also 1n the Fl R EXP 1 the testimony of Balram P.W.7 is nothing but a clear improvement in the prosecution story which cannot be relied on. The Circumstances of the case also clearlv indicate that there was absolutely nothmg to show that the appellants had gone to the mom With a prim concert to cause the death of Santosh The ev1dence led by the pijosecutton clearly shows that the act of the appellant RaJu 1n assaulting the deceased Santosh by a knife was an isolated act The appellant-Munna neither had the knowledge that the appellant-Rani had a knife with him nor shared the 9 I IO 'uitemion with Raj'u to cause the. death of Santosh In Kashmna x~ Situgh I; $13019 oi Punzab leported 1n A I R 1994 S C 1651 1t wa§ held [hat alfhough the appallant-accused had held the deceased :mxd another accused taking out a kmfe fmm h1s pocket mfhcted I emigle mJun on fhe deceased 1t could not be held that the accused had puot knowledge thaf another accused was armed w1th a kmfe smoc (ommon mtentlon on hls part was not proved. His ¢ Conlmcuon 1w . under Sectlon . 302 read with Section 34 of the I.P.C. was V set aside ln Aambzlns Smqh and others v State OfBt'har leported m AIR 1989 SC 1593 11 was held that unless there was matenal to Show that overt acts or acts were done m further common ultennon of all conv1ct1 Sen and others z/ Stare of xepoxtul m A I R 1976 S C 1156 two of the four accused persons \x em unarmed. ’l‘he thud accused had a knife but he was not hrajiulislung it. lt was in his pocket. /‘ alleged to be canyfng a danda but his participation was not accepted by the High Court. It was held. that it was difficult to intention to the accused persons “who were 0 ance of on w1th the ald of gecnon ’34 of l P C could not be sustamed In Mme: M Fourth accused was ‘ attribute common Amo‘kw _ in a u n arn let l. t . 14. Applviug tllr pnmlples of appiccm ‘ R. down hv the Apex Court hon of evidence as laid , 1n 0111 consideled opmlon the common x l int'entioi't under Sm non 34 of the l P C cannot be attnbutecl to the act of the qppellant R'yu The aju to his habitat where they ad no prior enmity with Santosh. He had no knowledgt thil the appellant dppellant Munna for the 1solatfd appellant M1 nu 1 h 1d accompanied R usu'tlly slept at nwht He h E; Pa'u was can‘dng a knife. Q$ 11 Th6 incident had occurred very late at night. The evidence of ; Dhan:eshwar P.W.2 and Baham P.W.7 also clcarly shows thag it was pitch dark inside the room. No injuries were found on the perso? of Santosh whlch could have been mf'hcted due to beatmg § by hands and flsts Injunes sustamed by Santosh Wem such l . which’could only be inflicted by a sharp knife. 15. ll‘he evidence led. by die yrosecution does not show that the appellaiit-Raju had entered ‘the room brandishing the knife. There e l ‘ was a iuivial incident followed by a quanel in which appellant-Raju i £ ‘ . suddenly took out the knife and assaulted Santosh several times on vital parts. In the facts and circumstances of the case, we have . l therefo‘ie no hesitation in holding that the prosecution has failed to Vi M pmve that the appellant-Munna shared the common intention with l i the aptpellanbRaju to cause the death of Santosh. Conviction of the appellant~Munna under Section 302 read With Section 34 of the I PIC cannot themfore be sustained ri\f 1‘16. 'lni the result, the appeal by Raju (Cxi.A.No.552[1990) is dismiS'ed. Conviction .of Raju under Section 302 I.P.C. andv sentencie awarded thereunder are maintained. Appellant‘Raju has L v‘ aheadyi undergone sentence. The appeal (Cri.A.No.374/ 1990) med by Miinna is allowed. Conviction of appellant-Munna @, ,.', t‘ Raghuxiandan under Section 302/34 of the I.P.C. and the sentence ’\ awarded thereunder by the trial Court are set aside. The appellaiit- Munna @ Raghunandan is acquitted of the charge under a e» r on. P.c. ,¥%V,‘~...~.g,.we., .. .,... ,. L I \a ~ Sd/' . Chief Justice ;’ sal- w Dilip Raosaheb Deshmukh é ‘3 Acdng Chief E Judge i _ ‘3 .1 1.2005 Anjam‘