HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri R.N. Chandrakar. J.J. Criminal Appeal No. 732 of 2004 Bidesingh Komara and another Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE R.N. CHANDRAKAR ciio^i^e- o Sd/- R.N. Chandrakar Judge ^ Post for Judgment :/J/05/2009 Sd/- Sunil Kumar Sinha Judge ^ @) ^^^^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri R.N. Chandrakar, J.J. .^ •^ APPELLANTS RESPONDENT Criminal Appeal No. 732 of 2004 1. Bidesingh Komara S/o Guharam Gond, aged 48 years. 2. Hiresingh Komara S/o Guharam Gond, aged 45 years. Both are r/o village Dootapipali, P.S. Antagarh, Distt. North Bastar Kanker Versus State of Chhattisgarh through P.S. Antagarh, Distt. North BastarKanker (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Ratindra Mishra, Counsel for the appellants. Mr. Ashish Shukla, Govt. Advocate and Mr. Ravindra Agrawal, Panel Lawyer, for the State. JUDGMENT ()3 .05.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellants have been convicted u/s 302/34 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.2,000/-, in defaultof payment of fine to further undergo R.l. for 6 months, by the Fourth Additional Sessions Judge (F.T.C.), Kanker, District Kanker (C.G.) in Sessions Trial No. 458/2003 on 28.2.2004. (2) The facts, briefly stated, are as under:- The appellants are real brothers. The allegations are that on 21.7.2003 at about 4.00 p.m., they assaulted the deceased namely r V- h-t ^ 'J^ Criminal Appeal No. 732 of 2004 Dashrath Kallo causing many injuries to him resulting to his death. The incident was witnessed by 3 eye witness namely Smt. Sanki Bai (PW-1),wife of the deceased, Sanniram (PW-7) and Smt. Foolma Bai (PW-8). The case of the prosecution is that some quarrel took place between the appellants and the deceased on account of purchasing of a pig. They caught the deceased and thereafter Bidesingh brought a danda and gave blows over the skull of the deceased. The deceased was taken to Antagarh Hospital. The First Information Report (Ex.-P/1) was lodged by Sanki Bai (PW-1) at about 2.20 a.m. on 22.7.2003, on which, an offence u/s 307/34 IPC was registered. The deceased died in the hospital during the course of his treatment. On information sent by hospital people, merg intimation (Ex.-P/23) was registered. The Investigating Officer reached to the hospital, gave notice (Ex.-P/4) to the Panchas and prepared inquest (Ex.-P/S) on the body of the deceased. He made a request for the post-mortem under Ex.-P/15. The post-mortem examination was conducted by Dr. Sandeep Dwivedi (PW-12) who prepared his report Ex.-P/24. The Autopsy Surgeon noticed following injuries on the body ofthe deceased: i) Lacerated wound, size 4 inch x 5 inch x 1 inch at left tempero occipital joint; ii) Lacerated wound, size 5 inch x 4 inch x 1 inch at occipital bone, horizontal & iii) Lacerated wound, size 7 inch x 5 inch x 1 inch at occipito tempero joint. On internal examination, he noticed fractures of 2 and 3rd cervical ribs with dislocation. Fractures were also detected on left 3 and right 3rd, 4th & 5th thoracic ribs. hle opined that the cause of death f ^ K: Criminal Appeal No. 732 of 2004 was haemorrhagic shock due to sub-dural and sub-arachnoid haemorrhage and injury to the vital organs and it was homicidal in nature. In further investigation, site plan was prepared under Ex.-P/2, plain soil and blood stained soil were seized from the place of occurrence under Ex.-P/6. After taking the appellant Bidesingh into custody his memorandum (Ex.-P/7), u/s 27 of the Evidence Act, was recorded leading to discovery of danda and danda was seized at the instance of the appellant Bidesingh under Ex.-P/S. Another site plan was prepared by Patwari under Ex.-P/11. The seizecl articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/18 but the report could not be produced. The medical report (Ex.-P/21) of deceased Dashrath Kallo was also collected, which shows that he received 3 lacerated wounds and he was in deep coma. (3) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Bhanupratappur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Fourth Additional Sessions Judge (F.T.C.), Kanker, who conducted the trial andconvicted and sentenced the accused/appellants as aforementioned. (4) The conviction of the appellants is based upon the eye witness account of Smt. Sanki Bai (PW-1), wife of the deceased, Sanniram (PW- 7) and Smt. Foolma Bai (PW-8). T r ^ -1:v Criminal Appeal No. 732 of2004 <^ ""'^rn^ (5) Mr. Ratindra Mishra, learned counsel appearing on behalf of the appellants, has not disputed the homicidal death of the deceased. Moreover, it comes in the medical report (Ex.-P/21) of the deceased as also in the post-mortem report (Ex.-P/24) thatthe deceasedreceived 3 lacerated wounds on theskull and he also sustained fractures of various ribs and the Autopsy Surgeon opined that the cause of death was haemorrhagicshock due to sub-dural and sub-arachnoid haemorrhage and injury to the vital organs and it was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. (6) Mr. Ratindra Mishra has mainly argued that the evidence relating to involvement of the appellants in crime in question is shaky. Alternatively, he argued that so far as appellant hliresingh is concerned, there are no allegations against him regarding assaulting the deceased and his conviction with the aid of Section 34 was notjustified. (7) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate and Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) PW-1, Smt. Sanki Bai, deposed that on the fateful day, Hiresingh caught hold of her husband and Bidesingh assaulted him by a danda. Her husband received injuries on the head. In Para-4 of the examination-in- chief, she further clarified that Bidesingh gave 3 blows on the head of her Y '^ ^ Criminal Appeal No. 732 of 2004 husband. PW-7, Sanniram, deposed that he witnessed that Hiresingh caught the hand of the deceased and Bidesingh broughta lathi and gave 3 lathi blows on the head of the deceased. PW-8, Smt. Foolma Bai, also deposed in similar fashion. She stated that Hiresingh was holding the hand of the deceased and Bidesingh was assaulting him. Deceased Dashrath received injuries on head and back. The version of these witnesses is corroborated by medical evidence of Dr. Sandeep Dwivedi (PW-12), who found 3 lacerated wounds on the head of the deceased. These witnesses have been put to lengthy cross examination by the defence, but nothing adverse could be brought on record, on which, either theirtestimonies may be discarded or it may be held that they are falsely implicating the appellants in crime in question. It was argued by Mr. Ratindra Mishra that Sanki Bai (PW-1) is wife of the deceased, therefore, she is an interested witness and her testimony may not be relied on. We do not find any force in the contention raised by Mr. Ratindra Mishra. The Apex Court has said time and again that the relationship is not a factor to affectcredibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. However, in such a case, the Court has to adopt a careful approach and analyze the evidence to find out whether it is cogent and credible. We have carefully analyzed the evidence of Sanki Bai (PW- 1), wife of the deceased, and we find that it finds support from the evidence of 2 other eye witnesses as also from medical evidence. Therefore, it was established beyond reasonable doubt that appellant Criminal Appeal No. 732 of2004 No.1, Bidesingh, assaulted the deceased by a danda causing 3 lacerated wounds on his head and many other injuries on thorax and abdomen. (10) There are no allegations of assaulting the deceased by appellant No.2, Hiresingh. The only allegation against him is that he was holding the hand ofthe deceased when appellant No.1, Bidesingh, assaulted him by danda.. Appellant No.2 has been convicted with the aid of Section 34 IPC. Section 34 has been enacted on the principle ofjoint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element 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 under section 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 from the circumstances appearing from the proved facts of the case and the proved circumstar.ces. 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 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 individually by himself. The existence of a common intention amongst the \ participants in a crime is the essential element for application of this ^ v\ ^ ? \ J^ "\ Criminal Appeal No. 732 of 2004 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 ofthe 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 furtherance of the common intention of all or to prove exactly what part was taken by each of them. (11) It was further held by the Apex court in the matter of Dani Sinah - 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 intention of an individual and, therefore, it is all Criminal Aupeal No. 732 of 2004 the more difficult to show the common intention of a groyp 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 of the 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 circumstances 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 offactand not of law. (12) If we examine the evidence of PW-7, Sanniram, it comes that when appellant No.2, Hiresingh, caught the hand of the deceased, appellant No.1, Bidesingh, brought a danda and then he gave 3 blows on the head of the deceased. It shows that both brothers came to the scene of occurrence unarmed and Hiresinghcaught the hand ofthe deceased and then Bidesingh brought a danda and assaulted the deceased as above. In appreciation, we find that Hiresingh may not be knowing that Bidesingh will, at once, bring the danda and will cause such injuries to the deceased. The act of appellant No.2, Hiresingh, clearly shows that he was not sharing common intention with appellant No.1, Bidesingh, at least to commit the murder of the deceased. In the facts and circumstances of the case, the conviction of appellant No.2, Hiresingh, u/s 302 with the aid of Section 34 IPC appears to be unjustified and we hold it accordingly. \ 't vattj |««1 Criminal Apueal No. 732 of 2004 (13) In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellants u/s 302/34 IPC are set aside. Instead thereof, appellant No.1, Bidesingh, is convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default of payment of fine to further undergo rigorous imprisonment for 6 months. He shall be entitled to set-off the period already undergone by him. Appellant No.2, Hiresingh is acquitted of the charges framed against him. It is stated that he is in custody since 24.7.2003 as he could not furnish baii bond in compliance of the order passed by this Court on 15.2.2005 while suspending his jail sentence. He be released, forthwith, if not required in any other case. Sd/- Sunil Kumar Sinha Judge Sd/- R.N. Chandrakar Judge ^;