HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri RaieevGupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. L Criminal Appeal No. 468 of 2003 Shivbagas & others Vs. State of Chhattisgarh & (Connected Criminal Appeal No. 715 of2004) JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA For consideration Sd/- Sunil Kumar Sinha Judge j Sd/- Chief Justice Post for Judgment -.2^107/2009 ±-_A- Sd/- Sunil Kumar Sinha Judge 1 frr HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 468 of 2003 APPELLANTS .0 RESPONDENT 1. Shivbagas S/o Nand Ram Binjhawar, Aged about 30 years 2. Rajkumar S/o Mukunda Singh Binjhawar, Aged about 26 years 3. Parmeshwar Singh S/o hliragiri Goswami, Aged about 25 years All resident of Village Sildaha, Police Station Ratanpur, District Bilaspur Versus State of Chhattisgarh Through : Station House Officer Police Station Ratanpur, District Bilaspur (C.G.) And APPELLANT RESPONDENT Criminal Appeal No. 715 of 2004 Pradeep Kumar, S/o. Jamuna Prasad, aged about 35 years, R/o. Village Sildaha, Police Station Ratanpur, Distt. Bilaspur (C.G.) Versus State of Chhattisgarh Through : Station House Officer Police Station Ratanpur, District Bilaspur (C.G.) (Appeals under Section 374 (21 of The Code of Criminal Procedurel Appearance: Mr. Ashok Swarnakar, Counsel for the appellants. Mr. Praveen Das, Dy. Govt. Advocate, for the State. Criminal Appeals No. 468 of 2003 & 715 of 2004 L JUDGMENT (23 .07.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant Shivbagas has been convicted u/s 302 IPC and appellants Rajkumar, Parmeshwar Singh & Pradeep Kumar have been convicted u/s 302/34 IPC and all have been sentenced to undergo imprisonment for life and to pay fine of Rs.200/-, by the Sessions Judge, Bilaspur in Sessions Trial No. 72/2002 on 19th of February, 2003. (2) The facts, briefly stated, are as under:- Co-operative Society, Sildaha was the lease holder of a sand mine situated on the bank of river Arpa. Deceased Tarachand was a member of the society. He was entrusted with the workof issuing transit passes to the vehicles for the sand extract from the mine site and to realizeappropriate amountofroyalty. One Naresh was also engaged for the said work. On 27.10.2001 Naresh was not on duty, therefore, his father Maharaj Singh (PW-2) had gone for duty in . place of Naresh. Deceased Tarachand and Maharaj Singh (PW-2) were present in the office. Shivbagas used to supervise the aforesaid work. The case ofthe prosecution is that on 27.10.2001, Shivbagas found that one Amrit Singh had taken the sand without paying the royalty, therefore, he along with 3 other appellants namely Rajkumar, Parmeshwar Singh & Pradeep Kumar went tQ the mine office and started abusing Tarachand and Maharaj Singh (PW-2). Thereafter Shivbagas assaulted Tarachand with hands and fist and threw him on the ground by holding his neck. The allegations against the other appellants are that they encircled Maharaj Singh (PW-2) at the time of assault. After sometime, Tarachand died on the spot itself. In the next morning, Maharaj Singh told the story to Tikaram (PW-1, brother of the deceased) who lodged the Merg intimation (Ex.-P/1). r/ Criminal AppealsNo. 468 of 2003 & 715 of 2004 The Investigating Officer reached to the scene of occurrence, after giving notices (Ex.-P/2 & P/3) to the Panchas, prepared inquest (Ex.P/4) on the body of the deceased. He seized one full shirt, one gamcha, one chaddi, one loongi, one shawl & a pair of chappels from the place of occurrence under Ex.-P/11. The royalty collection book was also seized under Ex.-P/13. Site plans were prepared under Ex.-P/5 & P/15. The dead body of the deceased was sent for its post-mortem to Government Hospital, Ratanpur under Ex.-P/16, where the post-mortem examination was conducted by Dr. Anil Kumar Shrivastava (PW-8), who prepared his report Ex.-P/18. He found 2 bruise, size 3x2 inches and 2^ x 2Yz inches, over neck and right lower portion of the chest. On internal examination, he found that there was fracture on the cartilage portion of neck and there was rupture of right lobe of liver with intra- abdominal haemorrhage. The Autopsy Surgeon opined that the cause of death was shock and internal haemorrhage and it was homicidal in nature. After receiving the post-mortem report, the First Information Reportwas registered under (Ex.-P/17) and after completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the matter to the Sessions Court, Bilaspur, where the trial was conducted and the accused/appellants were convicted and sentenced as aforementioned. (3) The conviction of the appellants is based upon the eye witness accountof PW-2, Maharaj Singh. (4) Mr. Ashok Swarnkar, learned counsel appearing on behalf of the appellants, argued that the version of PW-2, Maharaj Singh, does not appear to be true. He also argued that even if he is held to be reliable, no role has been attributed to appellants Rajkumar, Parmeshwar Singh & Pradeep Kumar, therefore, their conviction with the aid of Section 34 IPC \ cannot be sustained. He further argued that if appellant Shivbagas is held Criminal ApDealsNo. 468 of 2003 & 715 of 2004 (^ responsible for the death of the deceased, his alleged act would not constitute an offence punishable u/s 302 IPC and he may be liable for punishment under some lessor Section preferably under Part-11 of Section 304 IPC. (5) On the other hand, Mr. Praveen Das, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (7) Firstly, we shall analyze the case of appellants Rajkumar, Parmeshwar Singh & Pradeep Kumar, who have been convicted with the aid of Section 34 IPC. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a ruleof evidence and does not create a substantive offence. The distinctive feature of the section is the etement of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises undersection 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 fromthe 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 Criminal Appeals No. 468 of 2003 & 715 of 2004 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 intentionally do an act jointly, the position in law is just the same as if each of them has done it individualty 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 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 / 1 Criminal Appeals No. 468 of2003 & 715 of 2004 (^ furtherance of the common intention of all or to prove exactly what part was taken by each of them. (8) It was further held by the Apex court in the matter of Dani Sinsih— Vs- State of Bihar. 2005 SCC (Cri) 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 intentionof an individual and, therefore, it is all 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 of the 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. The facts and circurhstances 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. (9) Therefore, it is clear that merely on account of presence at or near the scene of occurrence, without doing anything more, without even carrying a weapon and without there being a feature of sharing common intention, a person could not be convicted with the aid of Section 34 IPC for the offence committed by the other accused. (10) PW-2, Maharaj Singh, deposed "that on the fateful night, he was present along with Tarachand at the scene of occurrence. At about 7.30, \ ^%fr'^ Criminal Appeals No. 468 of 2003 & 715 of 2004 Shivbagas, Pradeep, Parmeshwar and Rajkumar came there. Shivbagas started abusing Tarachand by using mother & sister, and he caught his neck and threw him on the ground. Thereafter, he gave a kick on his testicles. Tarachand started praying to forgive him. After sometime he died on the spot. The appellants ran away from the scene of occurrence. He remained there for whole night and in the morning he went to the house of Tarachand and narrated the story to his brother Tikaram (PW-1). About Pradeep Kumar, Parmeshwar Singh & Rajkumar, he deposed that they had also pulled Tarachand". On the above evidence, led by the sole eye witness Maharaj Singh (PW-2), though the presence of appellants Parmeshwar Singh, Rajkumar & Pradeep Kumar on the scene of occurrence at the time of incident was fully established but it cannot be inferred that they were sharing a common intention with co- appellant Shivbagas to commit murder of the deceased. The initial case of the prosecution was that these appellants had encircled Maharaj Singh (PW-2) while the assault was being given by Shivbagas, but Maharaj Singh did not depose about the above fact and has said that they had also pulled the deceased. Even assuming that the acts attributed to these appellants were true, merely on account of such act, they cannot be held responsible to share common intention atleast for the murder of the deceased. It appears that after checking the vehicle when Shivbagas found that it was going without paying the royalty to the co-operative society, he went to the scene of occurrence and gave beating to the deceased, due to which the deceased died and these appellants had accompanied co-appellant Shivbagas to the scene of occurrence. Criminal Appeals No. 468 of 2003 & 715 of 2004 (11) In our considered view, on the above evidence, these appellants namely Parmeshwar Singh, Rajkumar & Pradeep Kumar cannot be held liable for punishment u/s 302 with the aid of Section 34 IPC. (12) So far as conviction of appellant Shivbagas is concerned, the argument retating to testimony of Maharaj Singh (PW-2) being unreliable cannot be accepted. The defence has not been able to bring any such circumstance in his cross examination, on which, either his testimony may be doubted or it may be said that he is trying to falsely implicate the appellant in crime in question. Some minor contradictions have been brought in the cross examination by referring to his police case diary statement (Ex.-D/3), which do not go to the root of the matter and they cannot be said to be the material contradiction. In Para-10 of his evidence, this witness has categorically denied the suggestion, that Shivbagas did not assault the deceased. We fully rely on the testimony of PW-2, Maharaj Singh, and hold that itwas established by the prosecution that appellant Shivbagas alone assaulted the deceased with hands and fist, due to which, the deceased died. Therefore, the complicity of appellant Shivbagas in crime in question was fully established. (13) Now we shall consider the last argument of Mr. Ashok Swarnkar. It comes in the evidence of PW-2, Maharaj Singh, that Shivbagas came to the scene of occurrence and started abusing Tarachand. Admittedly, according to the prosecution, he was abusing him because one truck had gone from the mine without paying the royalty of the sand and on this only, he started beating the deceased with hands and fist. It shows that he has no intention to cause death of the deceased. There was no .v^/ Criminal Appeals No. 468 of 2003 & 715 of2004 preparation or premeditation and no arm was used by appellant Shivbagas. It appears that in heatof anger, he gave one kick to the deceased and threw him on the ground, due to which, the deceased received the above injuries and succumbed to those injuries. In the facts and circumstances of the case, though it appears that there was no intention on the part of appellant Shivbagas to cause death of the deceased but it cannot be denied that he was having knowledge that his such act was likely to cause his death. Therefore, in our considered view, appellant Shivbagas was not liable for punishment u/s 302 IPC and he would have been punished u/s 304 Part-11 IPC. (14) Accordingly, the conviction and sentence imposed against appellants Rajkumar, Parmeshwar Singh and Pradeep Kumar u/s 302/34 IPC are set aside. They are acquitted of the charges framed against them. Appellants Rajkumar, Parmeshwar Singh and Pradeep Kumar are on bail. Their bail bonds are discharged. (15) The conviction and sentence awarded to appellant Shivbagas u/s 302 IPC are also set aside. Instead thereof, he is convicted u/s 304 Part- II IPC and sentenced to undergo rigorous imprisonment for 8 years. It is stated that appellant Shivbagas is in jail since 1.11.2001. He shall be entitled to set-offthe period already undergone by him. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti