'€ ^l^ HIGH GOTOKT^^^^ CaiHATHSCiAKH. BILASPUR SmGLEBBMCH: HOirBEB 8HRI R. L. JHAMWAR. J. Qflmtaal ABBeal Ito. 81S/1991 APPBLLABT Vishwajcet Nag alias Bissu Versus RE8POWDBNT State of Madhya Pradesh (nowC.G.) jiFD®arB»T POST QN fl OCTOBBR, 2009 v Sd/- R.L. Jhanwar Judge mGB COURT OF CSaATSl'SGKRS. BILASPDR 8IMGUB BBNCH: HON'BLE SHRI RAJESHW^RIAL JHAMWAR. J. &i*niaal Aooeal No. 81571991 APPELtAMT (Accused No. 1) RESPOMDBNT Vishwajeet Nag aUas Bissu, son of Shri D.K. Nag, aged about 23 years, resident of Sarkaada Bilaspur, P.S. Bflaspur, Tahsilaad Distori.et Bilaspur Versus The State ofMadhya Pradesh, P.S, Sarkaiiada, Bilaspur. Crimiaal Appeal under Section374 ofthe Code of Oriminal Procedare Present: Shri Aaant Bajpai, counsel for the appellant Shri. Pradeep Singh, Panel Lawyer for the State, J UD GM B NT (Delivered on5 .10.2009) 1. This Criminal Appeal is directed against fhc judgnient of conviction and order of sentence dated 7& Aiigust, 1991 passed ia S.T.No.242/1987, whereby fhe learaed TV Additional Sessions Judge, Bilaspur has convicted fhc appeUaat uader Section 324 read with Section 34 of tfae IPC and sentenced IIJTTI to the period ofwhich he was under judicial custody aad to pay a fine of Rs.2500/-, m default of payment of fiae to undei^o S.I. for 6 laonths. 2. The case offhe prosecution, in brief, is fhat prior to 3-4 days of fhe date of incident on 13.5.1987, complamant Girija Shantor Yadav w^ standmg at Seepal Chowk, Bilaspur, at that time, appeUant- Vishwajeet and ofher accused person caine there and demanded c^aFette on credit finm the betel shop of one Rajendra, Whereupon, the complamaat askcd fhem that he wifl arraage cigarette for them fiiom aaother shop aad told as to why they are demaadiag c^apette fiom fhatshop. Uponwhich, appeUaat Vishwajeet Nag fhreatened fhe coiuplamant aud fhiereafter weut fix»iathere. After 3 days ' ;ifiaB8fc 8 J S of thm incideut wheu ftie com.plainant was gomg finm BcmgaKpasvi towards Seepat Chowk on a rickshaw of one Tantaiya (P.W.7), accused Pappu @ Avinash along wifh appeUant Vishwajeet Nag iatercepted fhe rickshaw aad raised the earUer altercation ay,mn and abused the coinplamant. Accused Avinash pickcd-up farsa fix>m. fhe rickshaw of Tantaiya and assaiilted the coiaplamant on his head, haads aad fbrehead. At fhe same time, appellaat- Vishwajeet threw a bicycle on conipleunant and infficted injuiy on his waist. He also assaiilted the complainaiit wifh lathi, as a result, the coiaplamant sustained iajuxy on his right hand. After fhe iucident bofh fhe accused persons fled finm the place of occurTenGe. They also carriied farsa wifh them. The coniplainant was admitted in fhe hospital where aftcr 3 days he bccame consdous. The rcportoffhe iacident, Ex.P-12, was lodged by the coiaplaiaant hlmself and on thc basis of that report, the case was registered against the appeBant aud ofher accused person. Coinplainaiit-Girija Shankar was inedically examaied. Statemento ofwituesses imder Section 161 Cr.P.C. have been recorded aud ofher necessaiy fonnalities of investigatton have also been coiapleted. After coinpletion of investigation chaige sheet was fUed before the Court of Judicial Magisteate First Class, Bilaspur, who ia tura, coiiunitted the case to the Court of Sessioi^, Bilaspur, 3. The learaed Sessious Judge, Bilaspur made over fhe case to fhe leamed TV Additk>nal Sessions Judge, Bilaspiir for trial. The learaed Additional Sessions Judge fi-amed charge under Sections,34l, 307 and 307/34 ofthe IPC agaiast the accused persous, read ovcr aad explained it to the accused persons. They abjiired fhe giult and pteaded fhat they have bcen falsely iuiplieated ra the case. 4. The leamed N Additional Sessions Judge, afier evaluatmg the evidence available on record aad hearing fhc counsel for respective parties while acquitting accused-Pappu DaU alias Aviaash aad appeUaat/accused-VishwajeetNag alias Bfasu uuder Sections 341, 307 aud 307/34 of the IPC, convicted ^^- ~:-- : ":;s, fussssa... ^ .r' .^ •s- ^' ^^y aad sentenced f&e co-accused along with appeUaat under SectiOns 324 and 324/34 offheIPC respectively as above. 5. This cruninal appeal has been preferred oiily by fhe accused appeUaat/Vishwajeet Nag @ Bissu. 6. Leanaed counsel for the appeBant subiuits that fhe appeMant has been falsety impUcated ia the case. At the place of occiirrence, be was aot present. He did not assaiUt fhe complainant. The leamcd trial Court tias convicted fhe appeUant only on fhe groimd fhat at fhe time ofocciu-rencc he was in fh.e coiupauy of accused Pappu alias Avinash. He further submits that only because of the reason fhat he was present there he ought not to have been convicted aa he has not taken any part ia the cnme. Hc placed reliance ou 2005 CRI. L.J. 1422 (Sq ftdrish Bhai Daudbhai Vs. State of Oujarat), (2006) 3 Supreme Court Cases (CSri.) 322 (Sumiy Kapow Vs. State (UT ofChandigcah) & 2007 (3) C.G.L.J. 117 (DB) (Sampat Singh Ss ors. Vs. State ofM.P. (Now C.G.). 7. On the ofher hand, leamed counsel for the State has supported the uapugned judgment. 8. I have heard leamed counsel for both the parties and have pemscd fbe record ofthe S.T. No.242/1987. 9. Dr. Rajeev Ratan Tiwari (P.W.4), on 13.5.1987, on X-ray ofleft haad of coiaplainant - Girija SIiaakar, has foiind fi-acture on hte ring finger. His report is Ex.P-6. 10. Dr. S. Miikherjee (P.W.5) has m.cdicaUy exaDuned the complaiaaat on 13.5.1987 and found foUowiag mjiiries on his body:- i. One obliquc incised wound over fiontal region of head over left eyebrow, size 8 x % cia, ii. Oae iacised wound cwer left dorsum ofhand, size 8 x 3 cin. iii, One incised wound over right dorstim of hand over the IIIrd nietecarpal phalaageal joint, size 4x2 cm. (a piece ofbone is visible aad it sharply cut edge ) iv. One incised wound over back side ofright ann, size 10 x 3 cm/obUque. He opined that iajiuy prescnt over fhe fiager of r^ht Iiand of coaiplamant- Girija Shankarwas serious in nature. His report is Ex.P-IO, He also examiaed fwsa, the weapon of ofFence. Accordiug to TiiTn fhe injiiry could be caused by bluat and hard object i.e. farsa. 11. Gidja ShaakarYadav (P;W.6), coinplainant, hasstated that he was acquainted to accused Vishwajeet N^ aad Aviaash. Accordiag to him, before this incident when he was staadin^ at Seepai Chowk, at fhat time Vishwajeet aiid Aviaash came fhere and deinanded c^arette fiTQin fhe betel shop of one Rajeudra. He told fheaa as to why they are demanding c^arette, upon which, a quarrel took place. Thereafter Vishawjeet Nag threatened him and after fhat he went &om. there. After 3 days offhfa iucident, when he was going fiwm BcmgaVpara towards Seepat Chawk oa rickshaw of one Tantaiya .(P.W.7), accused Avinash along with appeUaat Vishwajeet intercepted fhe rickshaw and raised fhe earUer altercation scgsan aud abused him. Thercaflcr, accused Avinash picked-up/arsa 6-om. fhe rickshaw aad assaulted hiin on his head, hands aad forehead. At the same tiaie, appeUaat Vishwajeet (Vishwnafh) threw fhe bicycle; as a result, he sustauied iajuiy on tais watet. Vishwajeet ateo assaulted Tiim wifh lathi aa a resiilt; he sustained injiuy on bis right haad. After assaulting him they Qed fioin fhe placc ofoccurrence. He went to the hospital wifh Hariprakash and Atul Dubey. In fhe hospital he was treated and fi-om where he reported the naatter to fhe police vide FIR Ex.P-12. lu his cross- examiaation, hc was conflx>nted wifh his statenient under Section 161 of Cr.P.C., however, no major coatradiction was foimd; In CTOss-exacaiaation he stated fhat he had no previous eiunily with Vishwajeet before fhis iacident In para-21 of his cross-exaoaiaation he stated fhat Vishwajeet assaulted Tiim wifh lahti and also threw bicycle on him. '^ ^f f ~^ ^ S: B'- 12. Regardiag coinpUcity of the appellant/accused in cnme in question, Tantaiya (P.W.7), driver ofrickshaw, has stated fhat he was canyiag coiaplainaat- Girija Sha&kar on his rickshaw towards Seepat Chowk. On fhe way, accused persons Vishwajeet and Avinash uiet them. Thcy iatercepted thc rickshaw. Afler that, the complauiant- Girija Shaakar and accused persons were tatkmg wifh each other, whereupon, a quarrel took place and bofh accused persons started abusing the complamant. Thereater, accused Avinash picked-up fcasa (tabbal) 6x00. Us riclsshaiw and assaiilted Ginja Shankar. He also deposed that Vishwajeet had thrown bicycle on Girija Shaxikar aud also beat liim with laihi. In his cross- exainuiation, he deiiied fhc su^estion fbat injuiy was not iaflicted by thTawing bicycle on Ginja. In his cioss- examiiiation of para-7 he furfher stated that ia the stateinent given imder Section 161 Cr.P.C before fhe poUce, he did not narrate about the bicycle, as at fhe relevant time he had forgotten to describe the saiae. 13. Bandu Yadav (P.W.8), who was ia fhe coutpaay of Girija on the date of mcident, also supported the prosecution case. It is cvident from hfa evidence fhat on fhe date of incident he was goiag with Girija on a rickahaw. On fhe way, accused persons stopped thc nckshaw. After that, fhcy lalked with eacb other. In between, Avinash picked-up farsa fioiu nckshaw and assaulted Girija. Seeing fhis incident, he weat to iaform fhe iacident to Harfahaakar, brother of Girija. 14. Rajendra Kuinar Pandey (P.W.9) ownjer of betel shop has stated fhat VMhwajeet came to his shop aad astod for dgazette; however he refused to give cigarette. Upon which, Vishwajeet started abusii^; hita. In between, complamant Ginja Shankar came there and try to intercept fhe quacrel, whereupon, Vishwajeet fhreatened Girija Shaaker. In his cross-exanunation, he stated that because of appeUant/accuscd Vishwajeet had not paid earlier balaace amount to him; therefore, he refiised to gwe ciyazette on credit ?&&.—»»-.' % w ^ssr. a iiS-J^^ 15. It is clear finin the stateineuts of above witaesses tbat at the place of occiUTence, appeUaat Vishwajeet was also present and accused Pappu @ Avinash assaiilted Guija Shaakar with farsa, as a result of which, complainant Girija Shaaikar sustained injuries. The injuries have been provcd by Dr. S. Mukherjee (P.W.5). It was atgued that Vishwajcet has not taken part in fhe crune, but from perusal of statenients of aU above eyewitnesses, it is clear that fhe appellaat - Vishwajeet had inflicted iajuiy to Girija Shaakar by throwing bicycle on Iiim., he assaiilted fhe coinplaiaaat wifh iahd and also abused him. Thus, it was established fhat the accused/appeBaat Vishwajeet Nag had taken part ia the cruiie. There is no doubt fi-oni fhe above evidence fhat at fhe place of occurrence, after stoppiag fh.c nckshaw, accused pcrsons wcre taUdng wifh coinplainaat -Ginja Shaakar in a usual maiuier. While they were on talking terms, suddenty accused persons started abusing Girija Shankar aad on the spur of momcnt, a quarrel took place aad accused Awiaash assaulted Girija byfarsa saad Vishwajeet assaulted by lathi. 16. So far as the question of conunon intentioa is conceraed, there does not appear to be evidence of coinnaon intention fioin fhe begttuung. However, after discussioas in usual inanncr between the coinplainant aad flie appcllant at fhe place of occurrence, all of sudden, a quarrel ensued between fhein and a comnion intention generated aad after that accused-Aviaash assaulted Gtrija Shankar wifh fwsa and appellaut Vishwajeet E^saulted him. by fhrowing bicycle on hii" aad he also assaulted him wifh ta(hf. The prosecution has rightly established the presence of fhe appeUaat at fhe tiaie of occiurence and sharing of fhe coinmon intention by the appeUaat 17. In the inatter ofJIBahcnt tOSas Mcrfiendra & others ys. Stette ofC.G.. 2008(21 C.G.L.J. 254 (DBl. fhis Coiu-t iu pai^raphs 22 fis 23 has hcld that - *%. 22. In fhe matter of Magsoodan wid others Vs. State of U.P., fhe Apex Cozut hdd that ''coauaon inteation is a question offact It is subjective. But it can be iaferrcd fix>m &cts aad circuinsteaces.* 23. Commoa intention caa be suddeiily formcd dunng occurEeace without any prtor con.spiracy and can gcnerate on the spot itself and such conuaon intention can be reasonabty inferred fix>ia fhe facts and circumstances of the case aad nature ofiujurics caused by the accused, as bas been held by the Apex Coiu-t in the inatter of YcSlapa vs. Stafe, where in a luurder trial the accused shared comiaon intentfon but no speGific injury was caused by one out of fhe six accused stiU hc can be coavicted iiader Scction 302, IPC wifh .fhe aid of Section 34, as tias been he]d by fhe Apex Court in fhe niatter of PuVa Reddy Vs. State. 18. Accordiag to decteion of fhis Court in thc luatter of Jttsttwnt alles JKnhendru & otters Vs. Stote ofC.G (supraf, it is clear that coaunon intention caa be suddealy formcd during occurrence wifhout any prior conspiracy aad caa be gcnM-ated on fhe spot itself. fa fhe present case also, fhe <x>xninoa iatention offhe appeUaat cinerged imiuediatety on the spot 19. For fhfi foregoing reaspns, I am af the considered QpitUDn tfaat the learaed taal Court after appreciation of evideace on record has righfly held fhe appeVsaa.t guitly for committing ttie ofience punishablc under Section 324 read wifh Section 34 of the IPC. The case law cited by leamed cottasel for fhe appeBaat does sot help the appeUaut becausc those cases are distinguishablc. 20, There u no iUegaUty, infirmity or manifest enor ia fhe findiag recorded by fhc trial Court warranting interference by this Court. 21. Iu fhe resiilt, f&e appcal dcserves to be and is accM'dingfy disnussed. _—- Sd/- R.L. Jhanwar Judge