^5S;059498 5^ii- ^-^t^^ m IHB HIGH COURI OF JIBICAKRS A'E JABALPURCM.Pt^ CRIKMALAFPBALNO. %'72—OF 1998. RAM. APPiELLi iI_£ GHASI/PASWSi S/o Bhurawan Paswaa, B/o Baleo, p.S. Bal^e, Tab, EorbafDistrict Bilaspur (li.P). ^RSUS; "**'•"*>*-».AA^j, ey--ftSSPCSu.Bi !__£ State of Madbya Pradesh., Ihrougfa P.S. Balco.^,.- CRIMIHAL APPSAL UiDSR STCTXCN 374(2) OF 'EHg CCDE OF CRIMINAL PRQCffiURE / 'f^sf^i^ XI-HC-22 sn^i^i Ml* 3TR5; sti4]+. ^fFt l'^.;^i '3^? ->)Wld4, »Tflt<'ls, faciwy 3ff??T V^K, &.^ ..(^^A^^u^s?^/^ "g^ /29e- '^. *<i*«ti (h*nw fg^a' tfii^i'gsnwafet Division Bench: • Hon'ble Mr. L.C. Bhadoo and Hon'ble IVIr. Dhirendra Mishra. JJJ ^i'rirrat'i iHcii 4 fe3t (pii+siK ^3lf:gil3i7^I 21-1-2006 Mr. Ashok Verma. counse AppealNo.1299/98. Or. Shailesh Ahuja, counsef for appeilant Sipahiya in Crimina! For appellant Ghasi Paswan in Criminal Appea! No.872/98. Mr. U.N.S. Deo, Add'ti'ona! Ffubiic Prosecutor with Mr. D.K. Gwaire, Deputy Govt. Advocate for the Stat^respondent. Ora! Judgmeni dictated on D^is. Per L.C. Bhadoo. J: - [ Crimina! Appeal No.1298/9^ filed by Sipahiya and Criminal Appeai No.872/98 filed by Ghasi Paswan lare being disposed of by this common judgment, as both these appeais a|re arising out of the same incident and the same judgment. The accused/appeiiants ha'f's preferreci these appeats questioning leaality and correctness of the Ijudgmeht of' conviction and order of sentence dated 9-3-98 passed by >WAF '»/*if'«I?»^i^^»^h»».1i^o^i.iii)/-^>^t*ifn,||,^)i^* C! liUiuiliy aLrvUSftyU/caiJytslldili. Oi the Additiona! Sessions Judge, Korba, in Sessions Triai No.46/96,Wher^by iesrnsd Additiona! Sessions Judge oahiya guilty for commission of offence underSection 302 ofthe i.P.C. anjjaccused Ghasi Paswan under Sect'on 302 fead with Seciion 34 of the I. underao imDrisonment for life. P.C., senienced each of the accused to .—£5- A >. / [-T^^f^ •;!-HC-22 'flR'?[q?I Te;iT3; 3TTOI ^-tfi^'prf-^ ia":jiti<'!B»; .-<? [aii'ltet1' ra ^-ll'^lci4!, itDl'H'ie, facll'Hy 3T[^T •V^ HTHrtTthKKff "^ 200 fa^T' W^I^RITWBf?^ ^w'wiH Jnw ^ feCTf Tf^zR v S^^l 3Wl The case of the prosec^ition, in brief, is ihat there was a shop of snacks of complainant Lalan (^upta (PW-1) near the country made liquor shop in Balco Nagar. 1-lis you^iger brother Chatanki & Banarsi were also having snacks shop near the.ij;ountry,made !iquor shop. On 15-11-95 at ^ tdt^— il I '^ ' ' < S.30 p.m.\the compiainant iiva^'servin^ snacks to the custorners ai^he heard the shout of Uma Sharlkar.Gupta who was abo having a snacks shop near the shop of Chat^nki. Uma shankar shouted saying that accused Sipahiya and his br()thsr-in-iaw Ghasi are attacking Chatanki. Hearing the shout of Uma Sha|ikar, Lalan Gupta rushed towards that side and saw that accused S'pahiya after throwing down his bro+her Chatanki sat on his brother andwas salying that he wii! kiii Chatanki, and stabbed Chatenki wiffi Knife 3-4 times order to save his brother. |on which Lalan Gupta tried to intervene in h the mean time, Ghasl, brother-in-law of Sipahiya, who was standing tltiere with Lathi, assauited Laian Gupta with Lathi and said, "vou leave Si and thereafter, Sipahiya & Ghsjsi ran away towards the forest. The matter was report^ under F.I.R. Ex.P-1. Recei\ti notice to the Panchas. he pre; under Ex.P-^. Site p!an of tt^ ./ by ths jn'^estigating Cfficer; ahiya" on which Laian Gupta Isft Sipahiya d by Lalan Gupta in Police Station: Balco ing the report, the Station House Officer, Police Stetion, registered Cri^ie No.363/95 under Secticn 307 read with Section 34 of ths l.P.C. anc!l^ft for the scene of occurrence. After giving ared the inquest report (Ex.P-2) of the dead body of Chaianki at.10.30 p^n. He iook into possession piain soii and biood stained soil from the pface of occurrence under Ex.P-3. He also took into possession, the leatl^er chappats of accused Sipahiya and Ghasi e place of. occurrsnce Ex.P-5 was prepared Accused Sipahiya while in police custody r'w? '•f'a^ M ^^ z-Mh^.iiffuiiih^ .^ ^ XI-HC-22 3^'W, { fe-3; SSR'd 1 ^-BT^'Hftn .0 t Tcg ^Wm, t?Tft7TTS, f^'^IW-i,? 3T^?T T=ra^ t)|t|fli ttiilic})' '"""""""" '"""""'ff^ 2(Xj tgre^s? 5^ sni^T •s'svw. "af^ gave memorandum Ex.F-6 regardj Dursuance of that, he aot recovejed the knife under Ex.P-7. Clothes of accused Siphaiya were takeri into regarding the place whera he kspt mortem report Ex.P-25. injuries ^i7if<s'''{n ^WTt' ^ fs^ ^; 3TRW 311% ng the weapon of offence, knife, and in possession under Exs.P-8, P-9 & P-10. Accused Ghasi gave memorancjum Ex.F-1 1 white in police custody LatftrMhe weapon of offence, and sarrie wss taken into possession undejr Ex.P-12 at the instance of accused Ghasi. The dead body of ChatanH;i was sent for post-mortem examination to the 100-bedded Hospitai, K^rba, under Ex.P-13 where Dr. D.K. Shrivastava (PW-9) conducted fost-mortem and preparsd the post- of Chatanki wers examined by Dr. Nar'endra Bsbu (PW-4), and h4 prepared the injury report Ex.P-15. Rscovered articies were sent for| Laboratory. Sagar. from where the Atter compistiori of invGoti^sttOn, ch3rgG sheet was fiicd jn thc Court of judiciai Magistrate, First (piass, Korba, who in turn committed the case to the Sessions Judge, Bil Sessions Judge, Korba, received ttie case on transfer for trial. The prosecution in ordsr to] aooeitants examined nine witnesN the ascused persons were recordj which they denied the prosect innocent, anci one defence witnessl recordbd Sessl^ns Learned Additlona! 5essl<tn rsspsctive parties, convicted an<t mentioned in para 2 of thi.s judgmejit ind >. / exarriination to the Forensic Scisncs eport Ex-P-17 was recelved. the aspur, rrom where iearned Additionai establish chargss against ths accussd/ >^es. On the other hand, statements of under Ssction 313 of the Cr.P.C. in ui!(?n e'.'idence and stated thai they are |0m Prakash Pradhan was examined. Judge sfter hearing courisel fcr ssntQncsd uio sccussd psrsons ss I'TJtT? '^7[ :.:M!C-22 "i^J ~.'<ll^i.'t-J. ^fr"rre f-icTFFPT< sn^r T^^K iTl^;' V, V^'f "•iTF"?' ?;7'-p V^7S, i'wass f "crm'wawra; ^ 2(X) f^^N •sWf\ V^sTt. •Hfrfa f^"T-^ TJWr^\ 'R f^crt Tf^^TK ^? STt^q 3Tr^f We have heard Mr. Ashok accused Sipahiva. Dr. Shailesh accused Ghasi Paswan and Mr. Verma, iearned counset on behaif of ^Ahuja, learned counse! on behalf of U N.S. Deo, learned Additional Public Prosecutor with Mr. D.K. Owajre, learned Deputy Govt. Advocate appearing on behaif of the State/re^ponderiK The homicida! death of Chat^nki is not in dispute. As far as invo!vement of ac^ussd Sipahiya in the crime In question is concerned, Uma Shankar Qu!j>ta (Pyy-2) is the main witness who '.vitnessed the crime in question ^r.d wtiose snacXs siiop •A'as near the snacks shop of Chatanki. ihe dec mat in November, iya3, at aDout pased. He has stated in his evidence p.30-9.00 p.m. he was at his shop and adiacent to his shop Chatanki's sjhoo v^as there. Sioahiva came to his sh.op, purchased mutton of two ru^ees and left his shop to go towards the country made 'iquor shop from wijiere he purchased ha!f bottle of iiquor. ^iipahlya had not paid fr.vo rupeeq hhakku in his hand. Thereaft^r, he went near Chatanki and called Chatan.ki. At that time. Chatanki stabbed Chatanki with knife on hi account of the stsb injury', intesl started oozing out of the injury. drenched w'rth biood. Hearing hi^ hold of SiDahiva from back. Atj to him and he was roaming carrying was preparing tobacco with his hands and accused Sipahiya stabbed Ch^tanki with knife, which he was carrying in his hand. Chatanki tried to savfe himself from the assault of knife as a resu!t of which he received inju^iss on hand and thereafter, Sipahiya s stomach, on which he shouted. Qn :ine of Chatanki came out and fciood Chatanki feil down. His clothes were . shout, Laian Gupta came and caught that time, accused Ghasi came and assaulted Lajaywlth c!ub. Ghasi i^ brother-in-taw of Sipahiya and in order r-iTi ';].!K'-22 ^w ^ t^r'?; WTV 7.^f. ^-fe^ tsa.ms^ .+ •^-^ ^W^. t?^FHTS. fe?IRT^ r53 3ff^T- -V^K iTmciTWtirai '^ ;(X) ^g' OT?S; ^TvW ife younger son of C-hatanki and further stated that Sipahiya shop wiii continue, he wiii kii '^P7,^V^. -!IKr)i'° ''S'5'1 ,f»iui( * ;:'f=7^ ••SWI to get Sipahiya freed, he ass^uited Laian with ciub. On the assault made with club, Laian left Sipatiiy^, and Sipahiya & Ghasi ran away. Uma Shankar (PW-2) tied towel ro^ind the injury sustained by Chatanki. Vinod, others came. This witness has also proyed the seizure of soil by the litvestigating Officer as also She chappals of accused persons under Exs.p-3 u P-4. In para 9 of his evidence. he has coneeaied the knife, weapor tetated before him ihat if Chatanki's snacks him. Accused Sipahiya gave memorandum Ex.P-6 to ths police in hi^ presence.. reaardi'ng the piace where he thereafter, he iock the inves of offenc-e, same was reduced into wri.ting, Knife and produced before titrie! Ex.P-7. He has a!so statedl possession unaer tx.h'-ii. The svidence of corroborated by the evidenc]e of Laian Gupta (PW-1), who has stated in his evidence that hearing ti that side and saw that accu^ed Sipahiya assauited his brother, he caught hoid of Sipahiya from bac!( oraer to ensure ths releass ciub, he teft Sipahiya. !n cross-exaiTiinationi igatiRg Qfficer io the said place, Sook out the .0., same was taksn into posssssion under that dothes of the accused were taken into Uma Shankar Gupta (PW-2) has bsen e shout of Uma Shankar he rushed towards , but accused Ghasi assaulied with c!ub in if Sipahiya, anci after receiving the assauit o' of these two witnesses (PW--i & PW-2), defence has not been ab!e| to eiiclt any elreumstance, which makes the evidence of these witness^s untrusuvorfchy or unreiiabie. tven uma Shankar (PW-2) is an ind^pendent witness whose shop was adjacent to the sh^ip/o{ Chatanki, ther4fore, his presence at the time of incident was [TiT?, •Ti'J^ .IJU.^4»41UJF*-f.'-feB-<---' Xi-HC-22 -"TOI ?E1 ^FT3raTCTi '9F"^i-7 ~^[T^ itli'ifSss'' 4 ~3~^f ^PV^, riTllti'ltc, feTRTy 3ff^T V^^ TITIT?IT'5RTTT3R """""""""""""" ""'TPT 2(1<) fe^y' snv, r-;n>sR -s^ bui naturai. As perthe medica who examined the injuries of body of Chatanki, one on the "n the stom.ach from which bloijid was ooz'ng out. Or, D,K. Shrivastava ,1 stated in his ev'dence that thejr near t!ie nipple in the size of q. the upper part of stomach, thi( incised wound on tne lett arm^ both th®iungs. Large intestj ?!T7n^'lrn ~^TS^\ ^ f^.ri Tf3p=TH ^n 3^i~^ 3TT?y7 evidence of Dr. S. Narsndra Babu (PW-4), Chatanki, there were four injuries on the wist of riaht hand, and there was an iniurv [PW-9) who conducted post-mortem has re was an inc'sed 5t2sb woljnd on ths chest .5 cms. x 3 cms., seconci incised wound on •d.incisad wound on the forearm and fourth His report is Ex.P-25- There was biood i.n ne was fu!i of b'ood. Large intestine and small intestine came out of the stomgch as a result of the stab injury and injuries were present on th^ intestine. He aiso examined accused Sicahsya and noticeci fcur injurfes of abrasion. As per the report of tfie F.-S.L., the knife in question, weapon of offence, *.vas rscover&d at t! f thl|e instancs of the accusac! anci same was found stained with blood. Eten clothes of the accused were a!so found siained with biood- Mr. Ashok Verma, le^med counse! for accused Sipahiya argued that as per the evidence of ejyewitnesses oniy one injury was inflicted on the body of deceased Chatahki whersas, as per the post-mortsm reoort, four injuries were found on th4 if we scrutiniae the e' reason that Uma Shankar attacted'fhs decsased wfth iiji bodyofChatanki. jdence of Uma Shankar Gupta (PW-2), who witnessed the crime, we do n|ot find any substance in this argument for the |has steted in his evidence that Sipahiya ijnife, the cieceased trieci to save she attack by' ['v^ ^f'sri fi Xl-HC-22 AIT??I ^n feii^ w?i .A-er •y ys; ^VV?^. ~S:5T(J~^i. Tii^TRW 7 .3TT^T XR^ tlltirti *lW^' """"""""" ""'"'''fFl 21>''1 nr^g' sifffl 'gTfflw 'afer hand as a result of which he i|eceived injuries on his hand, thereafter, Sipahiya again stabbed the decjsased on his stomach with the knife and intestine came out as a resuit ij>f the stab injury. Therefore, in the first •nstance, we do not find any ^i'ddin i:wf\ v rsv\ r^i^v ^srfsm SiT?-?; tMntiadiction with the medical or ocular svidence. Even othepwise, as -p^r settied law, primacy has to be given to ocuiar evidence and as has b^en mentloned above, ocular evidence of Uma S'nankar Gupta (PW-2) & Ljaian Gupta (PW-1) clearly establishes the invoivement of accused.'appeiia^rt Sipahiya ir, assauiting the deceased with the knife. Mahadcv jha (PW-6), \njho went on the scene after closing his shop, has stated in his evidenifce that he went near Chatanki, he was saying that Sipahiya & Ghasi ha|ve assau'.ted him and he wil! not survive. The orai dying deciaranon mads —A «^—t-» <I.~*J«* — opi iHG spur OT rnorTt6nt, ssmc ? Uma Shankar Gupta (FW-2) & l|-alan Gupta (PW-1)- Therefore, as far as the conviction of accused'appeii^nt Sipahiya is concerned, we do not find any illegality and infirmity in the j^dgment ofthe trial Court. As far as invoivement of !n order to attract the provisions of oarticiDation in action. Direct by deceased Chatank! \'/as voiuntar/ and nds support frcm the ocular evidence of the accused Ghasi is concerned. he has been convicted under Section 3Q2 with the aid of Section 34 of the I.P.C. of Section 34 of the I.P.C., the iiability of one person for an ofi'ence comnjiitted by anoiher in the course of crimina! act perpetrated fcy severa! perscjns arises under 5. 34 if such criminai act is cione in furtherance of a corr|mon intention ef the persons who join in committing the crime. The distir^ctive feature &f the Section is the element breof of such intention is seidom available and, tfte(AfQre, such intentiori cati only be inferred from the circums.ances 'i'WSVfP'l Xl-HC-22 3W^I^ f^is; si^v ywef^ -•ff-S """\^. y 75? -4]-41^4. dii'l^'IS, r'!«~1l'Hll< 8 31T^T TT^i tlTqc(T-*HI<* "^ 200 fN^g' 31TOI'?CTW?ft^ appearing from the proved circumstances. In order to brind the Drosecution has to -estayi circumstantia!, that there wa5 pl^n persons to commit the offence fcjr S. 34. be it pre-arranged or on thj be before the commission of the that if two or more persons intertl law is just the same as if each of| The existence of a common inter Is the essential eiement for applic; Ih yiew of the above princij Gupta (PW-1) & Uma Shankar Gi| beGn nientfOned abovs, has stet< hoid ofSipahiya, Ghasi assaulte^ ieave my brother-in-iaw Sipahiya Shankar (PW-2) has stated in hi Gupta eame on the scene and accussd Ghasi came and assai broiher-in-iaw free. !n cross-exan that it is correct to say that when that time, Ghasi came on the scei then Ghasi assauited him with From the evidence of Uma Shan; ail aione was roamina there ha >. / *i'iic)4H IWCT v feT7t T^RZTC ^; S#fR Sf^V acts of the case and the proved home the charge of common intention, lish by evidence, whether direct or or meeting of mind of a!t the accused whiph thsy are charged with ths aid of spur of moment: but it must necessarily rime. The true contents of the SeGtion is tionaliy do an act jointly, the position in them has done it individualty by himself. 'tion amongst the participants in a crime lt!on of ihis Section. >!e, if we scrutinize the evidence of La'an |)pta (PW-2), Laian Gupte (PW-1), as has ;a in his eviderice that when he caught him twice with a ciub and said that "you (stherwise, 1 wiii kiii you". Whereas, Uma i^ evidence that hearing his shout Lalan |caught hold of Sipahiya, at that time, (iited Lsian with Danda for setting his 'xan|iination para 22, this -A'itness has stated [Sipahiya attacked Chatanki with knife at js. When Laian caught hoid of Sipahiya, Dahda. Ghasi had not assauited Chatanki. l/.ar (PW-2), it is clear that only Sipahiya <(ing knife in his hand and there is no i^^-K K^HC-2^ F5? -^WM^, 'sCfW, farlKa^ •3 Sff^T V^ ^WW ^itfi* •M 1W fe^u' STCTI^I li'^EStR^ yfWHfCT arc^i'Fsnwgf?^ •*l<li<-l^H 'WRff'? fST3I ^al^K ^i srl^'if sii^i iS- iS^;® evidence that accused/appeliant G^iasi was also accompanying him at that time. Therefore. in the above fact^ prosecution has not been able t^> common intention with Sipahiya to murder. He came only when L3lan| are of the consiciered opinion tha)| accused Ghasi with the aid of Seet iegai evidence, as the prosecution| accused Ghasi was sharing commi)>n commit the murder of Chatanki, no( the crime reiating to the murder of of the trial Court convtetina accused I.P.C. cannot bs sustainsd. Adc imposed upon Ghasi under Section) i.P.C. are tiabie to be set aside. Appe^t and circumstancas of the case. the t^) establish that Ghasi was sharing ^ittack Chatanki in orcter to commit his caught hoid of Sipahiya. Hence, we finding of the trial Court convicting Eion 34 of the 1 P.C. is not based on has not been able to estabiish that intention with accused Si'pahiya to m any manner Ghasi participated in C|hatanki. !n the circumstances, finding IGhasi w!th the aid of Section 34 ofthe \c|cordingly, conviction and ssntence 302 with the aid of Section 34 of the rkLfr'u selt In the result, Criminal Appet Sipahiya faiis and same is No.872/98 filed by accused Ghasi Conviction and sentencs imposed t| aid of Section 34 of the !.P.C. are charge. Accused Ghasi is aiready discharged, He need not to s) Parties are errtitled for certifiec) L.G. Judge No.1299/88preferred by accused cjisr^issed. Whereas; Criminal Appeai Pfcswan succeeds and same is allowed. Ipon him under Section 302 with th.e sejt aside and he is acquitted of the sald |on bai],_ti~ieFefore, his bai! bonds are stirrender before the court. copy of this urdeL_.>—. - - Sd/- _..^. 'l DHSBENDRA WSHBA J judge