^ 7 Q> Division Beneh (^i-iminaf) IN THE HIGH COURT OF JUDICATURE AT_JABALEim CEIMIN^L APPEAL 'NO. -5-S^- ". GF 1997 33^ W».......iSjy.... ^ s{,ri...y4c^^, •W^^W»»M (CrimiQal Appee.1 under Section 374(2) of the Code of Criminal proced^re) PP.OP^" AJvocsl^PPELL&NTS ^^ (IN .TAIL) fiLA.R. ^^s^^ss^ssaee^ 1) Jitendra Ghandel^ Aged about 20 years^ S/o Latiya Satnami, Resident of Rajendra Hagar Ward^ Jagdalpur^ Police Station Jagdalpur^ Dis-trict Bastar (MP) 2) Bindesh Gfaandel, Aged about 23 years^ S/o Latiya Satnami^ Resident of Rajendra Nag^r Ward^ Jagdalpur^ Poiice Station Jagdalpur^ Qistrict Bastar (MP)• 1 & ^^ VERSUS RESPONDENT s^^ ^. State of Madhya Pradesh,] Thr©tigh ttee Police Stat^on Bodhgfoat, Jagdalpur^ Bistrict Bastar (MP)e CRIMIKAL APPEAL UNDER SECTION 374(2) OF THE CODE GF CRIHINAL PROCTDURE XI-HC-22 3?T^r^T l^w^n^i 5^^icb ^li^TT <_ J, •3^-^PT^[Z}, -^gT^, l^rray ^ ^.-' 3?T^T 'qil^ ^...Q^..^..€Q....^t Nl^S^fl WNIc^ ^i^r^^rw^ltn DIVI8IOH BBWGH: - H01FBLB MR. L.C. BHADOO AN3|5 HOyBLB MR. DHIRENDRA MI8; ^N^P^TTTFi^ ^ fe^ T^K '^'^NH^TI^F v BRA.JJ. 2-2-2606 Shri Vishnu Koshta, couns^l for the ap^llants, Shri U.N.S. Deo, Additionajl Public Pipsecutor with Shri Akhil Misfara, Panel Lawyer for the Stat^/respondent Oraljudgxnent dictated on Jpais, Per L.C. Bliadoo. J. The accused/api^Uaats Section374 (2) ofthe Cr.P.C. que| ofconviction and oider ofsentenci Sessions Judge, Jagdalpur ia '\ learaed Sessions Judge after ho| for commissk>n of offeuce under fhe I.P.C. for committmg murdeij of fhe accused/appeBaats to 16.25 hours PW-1 GwaUn Bai ga| I|^ve prefeyred this appeal iinder jstiomng fhe legaMty of fhe jud^ment {e dated 11-12-96 passed bylearaed pessions Tnal No, 158/95 whereby |dm^ fhe accused/appellaats guilty Bection 302 read with Secfton 34 af of Pancham Sirha, sentenced| und^rgo imprisonment for life, The case of fhe prosecuti<])u, ia brief, is fhat on 25-3^ w a merg mtimatioii Ex.-P/7 poUce station Bodhghat to fhe e^ect that todayat about 15.15 bus driver Ram NaTavan came to tlie house of Panchani Accused Jitendra and Bindesh c^me wifh a common mtention house aad started sayiag fhat 'tcjday driver has come to your fherefoie, he be seat out, we will| kiU him/ on which Pancham| replied that <he is my guest, do|a>t kiU him\ At fhat fime, ac^ [^^ each ^5 at in tiie Itiours ^irha, to fhe Biouse, ISirha k?used @^[ 3tl-HC-22 -S^ ^PTRPT, ^WTi, I^TRTy 3T[^T •'q^^ 'HW<?ll ^NI^h •M .2®9' 3n^^T^T f^ri^T3?rr^T ^hTOT';Rfi^ -3T(^T l^cH^R ^feT ^- deld Bmdesh caught Iiold of Fteacha+i attacked Pancham. Sirha on his it kxiife like iron weapon, as a result She took hiin to fhe Maharaai hoj declarcd him brought dead, Re^ station rcgistered F.I.R. Ex.-P/4, Pa&chatiaEaa Ex,-P/1 of tfae iavestigating officer also took iat^) stamed soil froni fhe place of^ baiiiyaii, shirt and dlioti of deceas^d possession uiider Ex,-P/3. Accu^ custody gave a memorandum E{s Evidcnce Act regardiag fhe place (for short the kmfe'). In takeaa iato possession under conducted by Dn K,R, Mauiya report Ex,-P/12. The mvest^atmg from the doctor as to wheffaer offence, deafh caa be caused, The| fhat injuries found on fhe body of| caused by iron knife (gupti) wea] blade of kaife was 36 cm, ia portion, ^liere pursua|ace dnd After coBipletion offhe ioives fhe Court of Judicial Magistrate, fhe case to fhe Sessions Court, ^l^fd^l-i 'RTR^Tf ^ f^t TfN^R ^^f^lCT^T Sirha frpm iieck aad Jiteiidra tomach wifh a grcat force with a >fwhich Paachani Sirha feU down, ^pital for treatinent but fhe doctor ?iving this report, S,H,0. poBce ?ft for ftie hospital and prepared bodv of Paochaai Sirha, IThe possession plain soil aod Ulocxi occurfence under Bx,-P/2, The F^mcfaam Sirha were taken iato sed Jitendra while m the pplioe K.-P/5 under Section 27 of fhe he had kept'iron kcdfe (gupti) of that iron fcnife (gupti) was |Ex,~P/6, The postmorteia jwas he prepared fhe postmorteni fficer sought aa opioion Ex,- fj^m irori Irajfe (gupt9, weapoja of doctor gave his opiaioa Ex. - {leceased Paaicham Sirha might be I?on of oflfence. The lengfh oj| celaitre and 46 cm, from the ctuter filcki s|t^ation, charge sfa^^t was ^agdalpur who ini tum comm^tte {Jagdalpjir where fhe proseci^tio: -exmHmeldt~6-TntcressfeS t6 establish the~cE^^~ ^ainst tfae^t^ 7io /13 fhe ua itted ^tioa ^d XI-HC-22 ^^ '^M^R, ^T?i^<i<, fN^roy W^T^T < I^WSTli^T '^iw^rftn 3^?T tRR? WRCP§T9iP;ir^ •^ 200 'N^ST' 3?TS^T i^H^R ^rf^T -f3- pei^oiis. Statexnents offhe accus ^Fprf^ft^ 'RT^fdT ~R fe%t if^i^R ^T ^ti^PT 3^T persaas were reeorded by leffimed Sessions Judge under Section 3(13 offhe Cr.P.C. ia which botli fhe accused persons derded fhe pr^secutiou evidence aad stated they have been fateely mipUcated After hearing arguments a| fhe accused, leamed Sessions ^ accused persons as mentioiied m| ^n the crime* We have heard learaed coii}isel for fhe parties. that Public Prosecutor and counsel for ^udge coQvicted and ^^ntenc^d fhe para-1 offhis judgmeiit accused/appellaats vehemenf^ accused/appeBaiit No.2 Bmdesh| fhat he attacked wifh gupti or J^ eceased Ftoicham Sirha is not in The homicidal death of di dispute, . As far as iovolvement of fhe accused/appeUants ia crime in questkm coiicemed, Slui Visljinu Koshta leamed counsel for fbe ^ argued tihat as far as is concenied, fhere is no evidence |e was caiiymg aay type of weapon with liim or he had aiiy knowl^dge that co-accused Jitendra was canyiag kmfe wifh him, fherejgbre, he was not sharmg common .„!. iatention wifh accused Jiteiidra knife. He furfher argued fbat On the other haiid, Shri U to attack Pancham Sirha with tlie fhere was only oae stab iajury, therefore, in aay case, offence d<|ies not travel beyoiid Section 304-11 oftfaeLRC. a^inst fhe accused/|appellaiite, N.S. Deo, leanied Additional Pujblic Prosecutor with Shri Akhfl Mishjra, leamed Panel Lawyer supported the jndgmftnt oftTie trial fo^rt. | [Tft^'§^R§^' f- XI.HC-22 w^r^r feti?F^nt"^T W^-^^i <, <;..- "y%? •^^TR:R, »^iy^!^'N^RTy w^r Tqra^ WR^ffW^tW"* re'*'""""*>u"<'*"^"^^B^ ;2(M) ^^ l^rra^ '91N •^ In order to appreciate fhe| coiiasel, we have perused tfae evewitness who witaessed fhe deceased Paacham Sirha, She fateful day at about 3 p,m. c&ie asked him to takc meal, at fhat canie to their house and askedl would IdU him, onwhich fhey fheir house, don^t kill him just caught hold of Pancham Sirha, h\ fhe house. Accu^d Jitendra and the accused persons fled Thereafter, she along wifh her to the Maharani Hospital ia a him brought dead. She lodged fhe argument advanced by resp^ctive evi^lence. PW-1 Szat Ghvalm Bai &s the cx|mie in question and is the ^fife of h^is categoncany stated fhat oia fhe 4river came to fheir house and. fhey tjune, accused Jitendra and Bmdesh fhat fhe driver be sent out, fhey that <vou IdU him after he leaves laow^ On which accused Bmdesh ?r husband, aad took him oiit finom stat>bed Pancham Sirha with liie knife ^way,- Panchaai Sirha feU down, rcp^ied PW-2 Tulsa has stated fhat| one driver came to their house, aad family mexnbers were persons namely, Jitendra axid fhat driverbe sent out, wewould father out of the house aiid father, Bofh the accused persoii|s father to fhe hospital m a ricksha^. corroborated fhe above evidence, regardiag common mtention-as Itas bccn hcld by fhc IIo ^n^^ ^TI^ ^ fe^ Tf^?R '^'^msTr^T nebhew Gautam took Paacham ISirha ^kshaw where fhe doctor de^lared rcportEx.-P/4. 1031 fhe fateful day at about 3 p,m. Her fafher Paacliam Sirha, driver lunch, at fhat time, accused came to fheir house and said Ikill him, Accus^l Bmdesh tcwk her stabbed with fhe knife to her fled away. Her mofher took her jy. PW-4 Gautajai has also taki^ig Bitidesh Jiteilidra In order to attract fhe pro^isioas of Section 34 of fhe LP,C. ^ ex XI-HC-22 -H^r -^i^i^ 'gFTfl^i^, t^my a^^r 'STSW ^sw^iy^w^ •M 200 'fN^ST' 3TT^I'^T [<-{i<=h~ 3?I^T ^RW^rfi^T ^TT^I •^n^R:-^T -$- ehS*li<r{<i1l ^HSlf ~? 'fe^ iHsl^K ^T ^^H 3TT^T Court in fhe matter of GIriJa SIit^nltor V. State of U.P. reported m 2004 AIR 8CW 810 that: <The element of partic^pation m actioii has to be estabUshed. The liabijity of oxie person for aa ojffence €X)mmitted byjaaofher m tihie course of crmunal act perpetrate|d by several persons arises under S. 34 if suchj cniniiial act m done ia furfheraace of commoja mtention of the perso^ns who join ia committin^ fhe crime. Direct proofof cominon intentioa i^ seldoni available aiid^ ftierefore, suchjhitentic|n can onty be uaferred froxa fhe circumstances ap^aring fin>mi the piDved facts ofthe case and fhe pro^ed circunistaiices. In order to bring home fhe charfee ofcomnioh ixitention, the prosecution has to est^blish by evidence, whether direct or circumistanti^ spur of oioDient; but i1| fhe coiiunissioii offhej Section 34 is tfaat iiitentionally do an acti is just fhe same as if] |d, fhat fhere was plan or meetibnig of ixund of apOl the accused peraons to eoixixnit fhe ofifence fc^r which fhey arc chai^ed wifh the aid ofS,34, l3|e it pre-arraiiged or on fhe xuust necessarity be before |cnme. The true concepiof lif two or morc persons I joiiifly, fhe position in law eaeh of fhem has done it iadividually by hinis^lf. The existence of a |>ngst fhe participants ia a elexaent for application of coinxaon i&tention aiat cninLe is fhe essentiiall fhis Section, It is iiolj necessary fhat fhe acts of fhe several persons c|iarged wifh coxnmission of an offence joinfly musf be fhe same or identically sioiilar, The acts maf be dififereiit in character, but must have been ac|tuated by one and fhe same commoii iatention i!a order .to attract tlie provision. The Sectioa| does not say /fhe common iiitention of aU^ nor jdoes it say <aad inteation coxanion to all\ Undei| fhe provisions of S,34 thie essence of fhe liabflity is to be jEbund m fhe existence of a conmictn iatentioii animatmg fhe [Trl^ ^^si^ XI-HC-22 3?1^?T'^T Vw^ ^^ s^^ich ^f^a -y^-^jqs^^ '^Nm^, t^ray 3T(^T TFW 'ni^i^iTWW^ •^ 200 •^^s' ^i^r ^^1W ^rii^ ^. 'accused teadiiig to ttif furtherance of such ialbesLtion, Applyiag fhe above prmcipl^ 1 Smt. Gwalm Bai, PW-2Tulsa at the scene ofoccurrcnce, at evidence of above witaesses namely, Jitendra and Bmdesh, atfhe residence Qffhe deceased who was inside fhe house as fht Biadesh took Paiicham Sirha oujt for a laoraeiit, accused Jitendra on his stomach as a resulti spoafaaeously, Commg to fhe argument d^ appeUants fhat accused Bmdeshj to kill Paachaxn Sirtiia a&d he weapon, which co-accused accept this argumcnt for fhe weapon was such fhat it is accompaiiying co-accused fhe co-accused was carrying, fhat even fhe size of central 36cm. aad length oftfae kiiifc) cni. Moreover, bofh were brofh^ attack Ram Narayaii who was| When fhe deceased objected to 4, .1^'Ln/I<=»<i1^ im-mtf»rlic»+f»T<r trw^lr ___'Pa <=hl^I^l41":T ^Mal ^ f^%lT^^R ^ ^feR 3?1^I doing ot a crimmaractm ?, ifwe look into fhe evidence of PW- ajid PW-4 Gautam, who were present fhb time of commissioii of cnme, The sjhiows fhat bofh accused persons wpio are real brofhei^, canie togefher a|nd asked hlm to send out fhe driver ;y would kUl him, On his refdsal^ of fhe house aad without waiting 1stabbed Paachami Sirha with knife of which Pancham Sirha died leanied counsel for fhe accused/ [was not sharing coxniaon iatexitlon haviag no knowtedge abqut fhe Jitenjlra was canymg, It is difif^bult to wlas rea^on that m the first mstaace di^tcult to perceive that aa aiccused cou|d not notice fhe weapon As has been xaentioiied size of which earlier pjortion of blade of the kai|fe was ironi fhe outer portion was 46 trs aad fhey canie deterBiiJQed to at fhe house of the de^eased, i^, wifhout giviag secoiid ti|LOUght, r*1^aTTi Rir'hsi rknt rk-f fK<» ['v^% -boiuse ^fe^ XI-HC-22 WS^T^T l^ri^^n^T ^-^[Nh- ^f^ <Y 1 y^ ^NKrt^, ^^t^<i(fi, t^roy ^T^T '^(^ ^WW^N!^**'<'^""*"'**""*'*<*"'*'a'**'';n^ ^W "^^r"""""""""""" 3T^T i^fT^'^fi'cT -^- aad accused Jitendra stabbed sharing comjxton intention wi1 per fhe above evidence. [him, Therefore, accused Bmdesh was accused Jitendra was wnt large as kijife Now, coxmng to fhe seccj Koshta fhat the accused persoi cause deafh of Paiicham Sirhal caa be gafhered froni fhe we^ where fhe assault took placJE assault, aiid part of fhe l»d] instaat case, adiaittedly, tihie a<l attack Ram Naravaa and ih^ Paiicham Sirha fhat fhe driv< Moreover, fhey came wifh a 36 cm long from fhe centeal portion. Stabbiag wifh such a orgaa of fhe body of Paacha|ii accused persons vexy clear fh^ intention to kUl, As per fhe was stab wouiid in fhe cesitre 0,5 cm deep up to fhe Perforated wound leflt lobe of lb x 1,5 cni ie, wound ofentraiic^ CBi. There was iajury on. fhe l|n fhe deceased died iastaiitarieoi fhe accused persons carae fhe fact fhat on fhe vital parts | wiyi I^P-rf^ft7r 'Rl^^ ^ f^^l Tf^^R i?^TJ^3Tr^r ^nd limb of argument of Shri Vishnu is had not come wifh the iatention to fhe mtention of fhe accused per^ons Itpon used, size of fbe weapoii,, place ;, background facte leadmg to llie where fhe blow was given, In the msed persons came with a preplaii to made fheir mtention very clear to |r be sent out, fhey would kill him, The size of blade of tihie knife was t)omt aiid 46 cm long from fhe outer pong knife in fhe stomach ie. fhe vital Sirha, makes fhe mtention evldence fhey atfacked fhe deceased ^ifh the QfDr. K.R. Mamya(PW-^) there >fthe stoxriach in fhe size of 1,1 abdomi^ial cavity placed verticalty 1 cin| 15 cni x below. ^er iimer surface m the size of|0,2 cm ;, exit wound in fhe size of 1 csta x 0,5 ver ia the size of 0.2 cm x 1,5 cjm, and [sty, Therefore, lookiag to the f^ct fhat preplaa, natiire of oflTence a^id also >ffhe body offhe deceased wh€(restab [^^f^. of fhe p^^^^^^^^^.^.^-^^^ XI-HC-22 .^WCT '^^t ^iWM^, w^sw^, f^imy ^- 3ff^r 'q^ ,^P,,.^.o,..,^.^ 200 'i^^ar' ZTT^T^T t^H^-S^T ^Rh7'?Tfi^> c Barye 31T^T i^'^R: '^ft^T -2- wouiid was caused, the iiitentioja large to cause deafh of the dece^ised iUegality or infiinnity ia fhe jBudi|ag accused pei^sons for coinmissioi^ with Section 34 ofthe I.P.C.. Sd/- L.C. Bhadoo ludge ^i^I<n4ii *ii^<yi?"? f^tTf^F^R iF ^f^R 31T^I of fhe accused persoiis was writ t. Thereforp, we do not find any of fhe trial Court convicting the of offence imder Section 302 read In the rcsult, the appeal bjeing devoid ofmerit, is liable to be dismissed aad it is herebv dismisfeed, -—"—'~~ — Sd/- Dhirendra Mishra Judge ^^ ^y~ ^\