S? c?k . < rtti i E : ?<a • tXU-189/(Jail) IC.J.P.R.I 1/94/2,000 crooo'o'o^" 3J APPEAL OF PRISONER -^....r^^-' No....^.':.f.^.Z............................Name 'Oivision Bench (Crimii ^s: 1;!J 1 Father's name .:.7&^ 0H...^.fM.ff.^iy::. .rS1Tt^r.ffldU.^. t.Cr£SJ^.. ^esidence.:^^>?I.::F^^Ii[^4.... Age .. .^. .& ..'^^: >.^t^........................ IJo.sS^S? -^v-n^n'-'f^Gc-u'^f^ ^ 'ftic |enteneed S:?W:fa:^.:%ICT%^:...On..^^^./^t-g ^nder seetigry .^Q<4^^-^^^- byTTSS. It.is explainedto ,tlie pnsonei; that ifhe states or wisheSiteibe represented by legal. ^titioDer'tU&AppeUateCounwillTiotproceedwuh'-fhebasefor seven days uniess IPlegal gractitiQne^ appea'rs. If the legal pract,ttio|ner'dbes not appear withia seven ^ he may not heard at all . ifthe prisa.oer.states tha't he does not wish to be repie- ented by-iegatpractitioBerth.ecourt H^f'gruceed at osce with tbecase andwill nffit be sliged togive'ahearing fb any legal pi'actitionerwl'iosliouid appear . ?®atebfApBlicatiDasfOr,copyof Judgement •Date ®nwfiich copy received Date on which Appeal seat |—fWhethei^.the prispner'wishes to be represented or aot - Yes / No \6.....'3.ti^.S .:^..:;.'-.^....^....,;...;.. Name /^s. ODfiaeam'.—;'..........^.^M.SH^..Jail ..^A.E ^^.^QI^ Jo:.:^..^^i^^^LDated.^^/^/-I99t.....l..._...^........^... ^ ®A - —" s ^iJi? irwarded to^theil ^M-MTirPaESSRASfi^Hl -i ?.• W^^H '^W^) o Tif ^ .yjQcri gssiorrtd'ftie proper Appeltate Cburt, /e^ .atherwhich a copy of judgement br oTder passed in ttie case For faveurof tran\- proper )erint.et>dgnt tpeHnte'tXleni, .Ceptral.Waff.aiBW:.. 1W^.'.. C^W 'sy, _mi ite of recetRt''in......../—!K...^—.....V.....office fte 6t receipt record' tp accofflpaaytlie Eourt mo of Appeal to ilte_ ^"t<wlw .JftBAt,SUR wa^ded to t^^ ...-.DUed....................199 iO-HC-22 ^?' '^p.fiw, "®Trr;ms,'WTrwR sTi^i^r -;F'i?;3TlN i KT'^T^' "^w?. s U5 1ER . a .A^^/^^^S?^/^ '29fr- 3Tit?I¥CTWEfe Oivision Bsnch: • Hon'bieMt'. l-.C. Shadoo and Hon'bis Mr. Ohlrendra Misftra. Jj 'WlferaN ITn:i?ff "q fe^ TfiROT ^'SrfiOT3It^I 21 -4-200f Mr- A-shok Verma. counse -s> Appeai No.12SS/98. Pir. Shailesh Ahuja, counsei for appeilant Sipahiya in Criminai for appeilant Ghssi Paswan in Crimjnai Appsai No.872/88. Mr. U.N.S. DSQ, Additionai ??ubiic Prosscutor with hflr. D.K. Gwaire, Dsputy Govt. AdvocaSs for the Stat^'respondent. Oral judgment diciatsd on D^ls. Peri-.G. Shadoo.J: ;rsmin3i Appeai No.1288/ag No.872/98 fifiied by Ghasi Pa Paswan fiied by Sipahiya and Crimsnai Appesi lare being disposed of &y this common ire arising out of the same jncident and judgment, as both these appeais ^re ("s same juagmsnt. The accussd/appeiiants hafs prsferred thesa appeais questioning teaaiiti/ and corrsctness of the iiudament of conviction and order of sentenss dated 9-3-98 paased by 302 rsad wsth Ssction 34 of ths !. undsrao irrtorisonmsnt for iife. the Addittenai Ssssions Judge, Korba, In Ssssions Trias No.46'96, wher^by iearnss Additionai Sessions Judge after holiiing acclisso/appeiiant Sij3ahiya guiity for commission of offencs undsr Section 302 of the i.P.C. anB aecused Ghasi Paswan under Seetlon '.C., senlenced each of the accusee to a-EC-22 '^\ 7°?=3piiCTq, ^rfl'y'is, l^rray Sff^^BT | Wss; aTEfl' j ^qN'"ff!%^ | s>t^7(^?ngT'Bft?i ''BFlfeNn WT?ff •?fe^t Tfe?R '^T Srf^ftT 3i1^T "hs case of the prosec|uiion, in brief, is ihai thsrs was a shop of snacks of compiainant Laiari Qupta (PW-1) near ths country mads liquor shop in Baico Nagar. His you|iger brother Chatankt & Banarsi were a!so hav'ng snacte shop near the ^ountry madej.iquor shop. On 15-11-85 at L, tdt^El^ < | ~ < 8.30 p.ffl.\Shecompia';nant Vi/a^ serving snacks to the custorners a^Fhe heard the shout of Uma Shar|kar Gupta who was aiso ha'ving a snacks shop near the shop of Chat^nki. 'uma ohankar shouted saying that accused Sipahiya and his br^ther-in-iaw Ghasi ars attaeking Chatanks. Hearing the shout of Ums Sh^nkar, Lalan Gupta rushed towards that side and saw that acc.used-Sipahiyp after throwing down his brother Chatenki sat on hls brother and was SE Chatanki witfi knifs 3-4 times order to save tils brother. jying that he wiii kHi Chafanfei, and siabbed |on which Laian Gupta Sried to inten/ene in h the mean tlme, Ghasl, orother-in-iaw of Sipahiya, who was standing iijiers with Lathi, assauiied Laian Gupta with Lathj and said, "vou teavs Si body of Chaianki ai 10.30 p^ took into possession, the leatH ahiya" on v/hich Laian Gupta !sft Sipahiya and thereafter, Sipahiya & Gha|si rgn away towards the foresi Tha mattsr was report^d by Laian Gupta in PoliceStation: Balco ing th^ report, the Station House Offiser, Police Stailon, registersd Crir^e N0.363/95 under Secilon X'7 read With ^ft for the scene of occurrsnce. Aftsr givine notice to the Panchas, he pre^ared the inquest report (Ex-P-2) ofthe dead ^n. He took 'nto possession piain soii and biood stained soil frem the rfacs of ocsurrsnss under Ex.P-3. He aiso er chappate of accused Sipahiya and Ghasi ynder Ex.P-4. -Sits p!an of tl^e place of-ctccurrsrics Ex.P-5 was prepsred by ths invsstigating Officsr. ^••3._ Accused Sipahiya white in police custody XI-HC-22 STRSI^T 1?::ira'3i®ii s-^i^ yiea ^ ~^st -4i<ii~i^, •a'tfta'is, 'fa^TH1?: tTP^T' Wt?!'S:R!IW :H{%t( jave memorandum Ex.P-6 rsgard] oursuancs of thai, he aot rscoveted ihe knsfe under Ex.P-7. Clothes of accused Siphaiya were takeri mto Accused Qhssi g3ve nismorsn^ym Ex.P-11 whi!e in pQlice custQdy regarding the piacs where he kept| Shrivastava (PW-S) conductcd mortem report Ex.P-25. injuries •Wifa^t•!WI?[f•?'fs^t Tf3R?'R: ^; ati;gi! sn^?[ |ng ihs weapon of ofrence, knife, yid in oossession under Exs.P-8, P-9 & P-10- LaShi, tfte wsapon ofoffsnce, and sarrie was taken Into possession undeir Ex.P-12 at the instance of accused Ghasi. The dead body of Chateni)J was sent for post-mortem examination to the 100-beddsd Hospitai, K<|srba, under Ex.P-13 whers Dr. D.K. bost-mortsm and Srepared the post- of Chaianki wera examined by Dr. S; Narendra Babu (Pvy-4), and h^ prepared ths injury report Ex.P-15. Rscovered articies were sent for] Laboratory. Sagar, from where the After compjetion of investibation, charge sheet was filed in ths C-ourt of judicia! Magisirate, First (piass, Korba, who in turn committed the cass to ths Sessions Judge, BI| Ssssions Judge, Korba, receiveo tite cass on transfer for triai. i rte prosecution in order to| appeiiants sxaminsd nine witnes^es. ths accused persons were record^d which they denied ths prosecutii innocsnt, and one defencs witnessl Learned AdcistionaS Sessl^ rsspsctlve panjss, convlctsd 2ri<tf mentioned Jn para 2 of this judgme exsminstion io tiie Forensic Sciende eport Ex.P-17 was received. aspur, from where iearnsd Additionai esiabiish chargss against the acsussd/ On ths other hand, statsmente of under Section 313 of the Cr.P.C. i" 3n e'/idence a",a siated that they are Om PraKash Pradhan was examined. >ns Judgs afier neanng counsei for 56HtGriC6Ct tifS SCCUScd p^rSOHS 33 ht. Xl-HC-22 y£[^raiwf, ^at^Ts, 'fN^tray 4 Aii?i?ff ! •i^iN •3iA''1 'aTqra;"gi?g |tii 3;s;a^, an^i^Rttwgft^ 'Ebi'ilTi'iN u.wvSvfW ^aTpOTsn^i Ws havs hsard Mr. -Ashokl Verma, iearned counsei on behaii of accussd Sipahiya, Dr. Shajlssh jAhuja, isamad counsai on behaif of aocused Ghasi Paswan and Mr. U.N.S. Deo, teamed Additiona! Pubiic Prosecutor with Mr. D.K. Gw&^e, iesrned Deputy Govt. Advocate appearing on benaifofths State/rs^pondent The homicida! dsath of Cha^nk' is not in dispute. As far as involvement of ac^used Sipahrya in ihe crimc In question is ccncemed, Uma Shankar Gu^ta (PW-2).te the main witness who witnessed the crime in question ^nd whoss snacte sftop was near the snacks shop of Chatanki, the decfeased. He has srated in hts evidence that in Novsmbsr, i 995, at about p.30-9.00 p.m. he was at his shop and adjacsnt to hts shop Chatanki's s|hop was thers. Sipshiya came to h!s sh.op; purchssed mutton of two ruj^ees and left hls shop to go towards the country made 'iquor shop from wifiere he purchased ha!f bottie of tiquor. Sipahlya had nct paid fc'.'o rupee^ So him and he was roaming carrying ChhaRku in his hand. Thereaft4r, he went near Chatanki and called Chatanki. At that time, Cha!anki]was preparing tobacco with his hands and accused Sipahiya stabbsd Ch^tante with knife, which he was carn/in< m his hand. Chatanki tried to savjs himseif from the asssuit of knife as a resuit of which he received inju^es on hand and thereafter, Sipahiya stabbed Chatsnki with knife on his stoirisch, on which he shouted. On account o? the stab injury', intestine of Chatank'i came out and &!ood started oozing out of the injury. |Chaianki feli down. His ciothes were drsnahed with biood. H^iring hi4 shouf, Laian Gupta came and eaught hold of SiDahiva from &ack. Afi that SirBe, accussd Ghasi came and agaauted Lalan with c!ub. Ghasi i^ brother-in-law ofSlpahiya and in ordw [•qt^^fe^ SI-HC-22 -i--- 'S^ '•^WvW, ^ft'ffT?, (^ciiyip: 5-IR^IiBi ire;lT373n^[ sR'!:iNi"gfe; 3TI^( TwnWtrf?!! qiT')Ti?iat=f •qTqsif-q reiat-(fSRSTC ^aiPOT.3tl^r to get Sipahiya freed, hs ass^uited Laian with ciub. On ihe assauit mada wsth c!ub, Laian ieft Sipahiy^, and Sipahiya & Ghasi ran away. Uma Shankar (PW-2) tied towel ro^nd the injury sustained by Chatsnki. Vinod, younger son of C-hatanki and| others came. This witne&s has a!so proyed ths seizure of soii by ths irtvestigatjng Offteer as siso the chappate of accused persons under Exs.p-3 & P-4. Sn para 9 of his ev-idence. he has further stated that Sipahiya jsteted before him that if Chatanki's snacks shop wiii continue, he wsi! kit| him. Accussd Sipahiya gave memorandum Ex.P-S to the poiice in hi^ presence, regarding ihe siace where he GonGeatod the knife, weapori of offence, same- was reduced 'nto writing, ihereafter, he took the inyes^gating Qfficer io the sald piace, took out ihe Knife snd produced befors trle i.0., same was taken Into possessior. under Ex.P-7. He has ateo stetsd possession unaertx.P-s. The evidence of his evidsncs that hearina {?). that slde and saw that accu^ that elothes of the aeeused were taksn into Uma Shankar Gupta (PW-2) has been corroborated by the syidsncje of Laian Gupta (PW-1), who has stated in hoid of Sipahiya frorn bacif > t^/V +)^<^ IFlf^l. orasr to ensurs sn®reseasel club, he ieft Sipahiya. In cross-examinatiori defence has not been abiel e shout of Uma Shanksr he rashsd tov/ards >ed Sipahtya assauited his brother, he caught but accused Ghasi assauiisd wiih club in of Sipahiya, and after receiving the assauit of of these two witnssses (PW-1 & PW-2), to eiiclt any eiroumstance. whieh makes the evidence of thsss witness^s unirusiworthy or unreiiabje. Eyen Uma { Shankar (PW-2) is an irsddpsndsnt witnsss whcsss shop was adjacsnt to the shop of Chatanki, thef^fore, his presence at the time of incident was Xi-HC-22 d^i 'ifpn^?, 3Tiitii]i«,raMra 6 ;?'*?! ^iT 'Rr;"?T3nt?T s!;I'N"Hf^T p.l» sa^? Bsg'S'iBWBl^ SIlt?!'?CT!gT ^lftTT "tT'tITl:I?!T'? fetTt TfSR3TC '^ ST^q .iff^i but naiurai. As per is medica) who sxamined ths injuriss of| bodv of Chatankj, one on the ( evidenca of Dr. S. Narsndra Babu (PW-4), Chatanki, thsre wers four injuriss on the wrist of right hand, and there was an mjury on the 3tnnfiach frorD which bip^c! was oozing out. Or. D.K. Shrivastava [PW-9) who eonducted post-mortem has s^t^f^v +tn/^. tii^n.t^ itX *i^.rt «•»•»< ux.? j*i|/|^i<.? iii ti K,; 2>i<.t.; Vj ^ ststed in his evidsnce thst th^rs wss sn Ip.cissd stsb woynd on ths chest .5 cms. x 3 cms., second incissd wound on the upper part of stomach, thi incised wound on the teft armj both ths lungs. Large intesij rd incised wound on the foraarm andfourth His report is Ex.P-25- There was biood i" ins was fuii of bicod. Largs intestins and sma!! intestine came out of fh^ stomach as a resuis of the stab injury and injurias wsre pressnt on th^ intestins. Hs aiso examinsd accussd Sipaniya and noticeti four !njur|les ofabrasion. As per the report of tijie F.S.L., the knife i" question, weapon of offencs, '.ras rscovsred at tite instance of ths accussci and same was found stained with blood. E+en ciothes of the accused were aiso found siained with biood. i fvlr. Ashok Verma, te4 that as per the evidence of ths body of decsased Chatahki four iniuries were found on thi lirned counsei for accused Sipahiy'a argued ^ewiinesses oniy one injury >«®sinflicted on ahki whereas, as o®rthe post-mortem report, body of Chatanki. ' if we scrutiniae the ev] witnessed the crime, we do reason that Uma Shankar atiaciod ths decsased wlth M Sdence of Uma Shankar Gupta (PW-2), who njot finri any substance in this argument for the |has steted in his evidence ttiat Sipahiya ^ntfe, the decsassd triea to savs She atack oy ^T XI-HC-22 'Tnf^ipff"^, ^itere, feiTCTy 31K»!^I i f^iWBTt^ Wqwgfln' ^-^^•^^^ i^^ff' •snt^r'gRsiw 'sf^ hand as a result of which he Slpahiya again stabbed ths IntesUne came out as a resutt Instance, we do not find any svidencs. Even otheRivise, as-p^r ocuiar evidence and as has b^en Uma Shankar Gupta (PW-2) & L^ia invoivement of accused/appeii with the knife. lc n.iiilo. WV?^ 'ESIWif 4 fsV •(fsi^TC ^?3ri:WT3iI^?i ijeceived injuries on his hand, thsreafter, decjeased on his stomach with the knife and the stab injury. Therefore, in the first t»ntradicti"n with the medicai "r ocuiar settted iaw, primacy iias to be 'given to i^en mentioned above, ocular evidence of L^ian Gupta (R.W-1) cieariy estabiishes the ^it Sipahsya !", assauiting the deceased Mahadev Jha (PW-6), v^ho went on the scene after ciosjng shop, ,has stated in his evidenjse thaf he went near Chatanki, he was saying that Sipahiya & Ghasi hsjve assauited him and he wii! not survive. The oral dying deciaration Riadei vu iu8 spur or momGHf, ssms T As far as invoivement of by deceased Chatanki was voiunter,' an< "» ndo suoDOrt from the ocular evldenee of Uma Shankar Gupta (PW-2) & g-a!an Gupta (PW-1). Therefore, as far as the eonviction ofaccused/appeii^nt Sipahiya is conpemed, we do notfind any iiiegaiity and infii'mity in the jtidgment .of fte triai Court. W~IQ accused Ghasi is concarnsd, hs has been convicted under Seciion 302 with the aid of Section 34 bf the i.P.C. !n order to atteast the prov!sions| of Section 34 of the I.P.C., the liabiiity of one person for an offence comnjiiiied by another in the coures of criniinai act perpetrated bysevera! perscjns arises under S. 34 if such criminai acS is done in furtherance 6f a conlmon Intention of the persons who join in commiiiing ihe crims. The distirtctive fsature of ths Seciionjs ths siemsnt of particioation in action. Dirscibroof of such inteniion is seldom available and, therefore, such intention cs^i only be inferred from th®dreumstances .-F- XI-HC-22 3II^?1^RT R-ti'* an^i *^iicti •t-fi^t ^iKs^WS^^SSg^ m '3^ ^TRRPI, dTil^'lii, I^TRTy 311^1'FRIIWgfgtT appearing from tts proved circumstances. !n order to brind the prosecution has So estaUi cireumstantiai, that there was pi^! psrsons to commit the offence fc|i 3. 34, be it pre-arranged or ontht be before the commission ofthe 4i that !f two or more persons interX !aw is just the same as if each of| Ths sx'stsnce of a common JnteA Is the ess&itiai eiemenifor appltei facts of the case and the proyed homs ths charga of eommon sntention, iish by evidence, whether direct or or nieetinQ of mind of sii the sccuseci which thsy are charged wifh ths aid of 3 spur of moment: but it must necessarily ;rims. The true contents of the Seetion is itsonaiiy do an act jointiy, fte position in them has done itindividually by himseif. ttion amongst ihe participants in a crime rtion ofiRis Sectiori. . Ih view of the above princij Gupta (PW-1} & Uma Shankar Gi] bsen mentlonsci sbovs, hss ststt hoiQ' of Sipahiya, Ghasi assauitedl isave my broihsr-in-'iaw Sipahiya Shankar (PW-2) has stated sn hi| Oupta cams on She scene and accussa Ghasi came and assaj brother-in-iaw free. In cross-exantii that it is correctto say that when ihat time, Ghasi canis on th°scsds then Ghasi assauited him with Di From the evidence ofUma Shani ai! aione was roaming there hai •*wffl4Sl TWRS ^ fe'8 :(fsR?TC •^-aipOT Sftln |>!e, if ws scrutinize tiie evidence nf Laian ^pte (PW-2), Laian GupSa (PW-T), as has ;d In his sviGsnce ttist wh^n he csught him twice with a ciub and said that "you tsthsrwiss, i wiii kiii you". Whereas, Uma fe evidence fe'iat hsaring his shout La!an |caught ho!d of Sipahiya, at that iime, ^ited Lslan v.'lth Danda for seffing his itiination para 22, ti'iis Witness has stated ISipahiya attacked Charanki with knife at ^s. wnsn Laian caugni noia or sipansya, nda. Ghas! had not assauitsd Chatanki. i](ar (PW-2); It is clear that only Sipahiya fing knlfe in h.is hand and there is no % 3-HC-22 75^'^IPTCW, 9 sn^T'^iT K.-U* 31^ ^*Ji •9f?rt -^.-. sii^i ^Rdwpfer evidsnce that accused/appeiiani i3|iasi was atso accompanying him at that tjrne. Therofore, in the above faet^ proS6eution has not been abte t(; common iritention with Sipahiya to murder. He came oniy when Lalanj ars of the considered opinion tha| accused .Ghasi with the aid of Seet iegai evidence, as the prosecution] accussd Ghasi was sharing comm<)>n oommit the murder of Chatanki, noj the crime reiating to the murder of of the triai Court convictina accused I.P.C. cannot be sustainsd. Act imposed upon Ghass under Section] i.P.C. are iiabie to bs set asids. Appe^i tn She nesutt, Crimina! Sioahiya faiis and sam® is No.872/98 fiied by accused Ghasi Conylction and senten.ce Imoosed i ald of Section 34 of ihe i.P.C. ars cterge. Accused Ghasi is aiready dlscharged. He neednot tp s| -^a. Partiss ars sntitlcd for csrtified Sd/- L.C.BHADOO Judge •5iiN?Pfr!T IMvS ^fS^I TfSl^H i? 3lp(ra an^l : . and ciroumstances of the case, ths establish that Ghasi was sharing ^ttack Chatanki in order to commit his caught hoid of Sipahiya. Hence, we flnding of the triai Court convictjns tion 34 of the IP.C. is not based on has not been abie to establish that intention with accused Sipahtya to in arsy manner Ghasi participated in ^hatenkf. !n the circumstences, findins IGhasi with the aid of Section 34 of ihe !^cording!y, conviction and ssntencs 302 with the aid of Section 34 offte dh nqco No.12S9/98 preferreri by accused ciisntissed. Whsreas; Criminai Appeai Pfeswan succeeds and same is allowed. |pon him un3er Secfc'on 302 with the sside snd he is scquitted ofthesaid |on bail, thergfore, his bai! bontis are sl.u-render bsfore the court. copyofthisorder. [Tit^ ^r^