HIGH COURT OF CHHATTISGARH A-T BILASPUR Cr. App. No. 1196] 1999 APPELLANT Ganesh Jangam ‘ 'Versus ‘ u ‘ , RESPONDENT State of M.P. . JUDGMENT Post for judgment on '2, ,07.2009 Sd/— R.L. Jhanwar Judge 7 Vi 7.2009 HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. App. No. 1196] 1999 SB: Hon’ble Shxi Justice R.L. Jha'nwar APPELLANT Ganesh Jangam s/ o Narsingh Jangam aged about 35 years, Resident of Bmmhan Para, Bhairamdev Ward, Jagdalpur, DistrictBastaIfMP) ‘ Versus State of M.P. through the Police Station Jagdalpur, District BastadMP) Appearance: _ Shri Vishnu Koshta and Shri N.P.Koshta counsel for the appellant. RWONDEN’P Shri Pradeep Singh, Panel Lawyer for the State. J U D G M E N T (Delivered on 2 07.2009) R.L.Jhanwar,~ J. x The appellant has preferred this appeal again st the judgment of conviction and order of sentence dated 22.3. 1999, passed by the 2nd Additional Sessions Judge, Jagdalpur at Bastar in S.T.No.309/ 1989, whereby the learned 2nd Additional Sessions Judge has convicted the appellant under Section 326 of the IPC and sentenced him to undergo R.I. for 5 years and to pay a tine of Rs.5,000/ —, in default of payment of nne to further undergo R,I. for 1 year. Q The story o'f the prosecution in short is that on 2.3. 1989, at about 1. 15 ptm. Ganesh and Munendra assaulted Shankar Prasad Tiwari (PW—5) with hand and fists. Shankar Prasad ’I‘iwan' ran away from the spot and fell down. Thereafter, Munendra assaulted him with knife on his back, as a result of which, he became unconscious. Some persons saw the incident and informed the I l , complainant— PWI- Rajeshwan' about it Rajcshwan' lodged a Flrst Informatlon Repoxt (Ex P/ 1) 111 the Pohce Statlon The case was mglstsred agamst the present appellant and Munendra under Secuon 307 read W1fh Secmon 34 of the IPC. Injured Shankar Prasad Tiwari was' medically examined and investigation took place. After completion of the investigau'on, charge sheet was filed in the Court of Chief Judicial Magistrate, Jagdalpur, who in turn committed the case to the Sessions Judge The learned Sess1ons Judge made over the case to the 2nd Additional Sess1ons Judge Jagdalpur for tnal .‘* i. g. The learned Addltional Sess1ons Judge named charge against the appellant and Munendra under Section 307/ 34 of the IPC read over and explained 1t to them Both of them abjured the guilt and their defence was that they are mnocent and have been falsely implicated in this case. During the course of trial, accused Munendra died, therefore, the learned trial Court struck out the name of Munendra, as the case against him has been abated. The learned 2nd Additional Sessions Judge, after evaluating the ev1dence available on record and hearing the counsel for respective parties, acquitted the appellant— Ganesh under Section 307 of the IPC,’ however, he convicted and sentenced the appellant under Section 326 of the IPC. I have heard learned counsel for the parties at length and perused the record. Rajeshwari (PW~ 1), who lodged the F.I.R. (EX.P/ l) has stated that one Nanu Jangla came and told that her brother Shankar Prasad Tiwari has been assaulted by Munna, she went to the spot Qand saw that her brother was lying in unconscious condition near the Mandir. She reported the matter to the Police. She is not an eye-witness. The injured (PW-5)— Shankar Prasad Tiwari, has stated that near the Mahadev Mandir, the appellant 85 Munendra s surrounded him and assaulted him with hands and fists. He ran away and fell down, thereafter; Munendra came there and assaulted him with knife. He specifically stated that the appellant- Ganesh did not assault him with knife. He nowhere stated that when Munendra was assaulting him with'km'fe, appellant Ganesh in any way assisted Munendra. He also did not state a single word that the appellant also took part in the incident when he was assaulted with lmife by Muneridra. The learned trial Court, for the injury caused by knife, has convicted the appellant under Section 326 of the IPC, whereas, from the evidence, it is evident that the appellant neither assaulted Shankar Prasad Tiwari with knife nor he assisted Munendra when he was inflion'ng the knife injury. The learned trial Court held that there was no common intention; therefore, the learned trial Court did not convict the appellant with the aid of Section 34 of the IPC. Section 34 of the IPC reads as follow— When a criminal act is done by several persons infurtherance of the common intention of all, each ofsuch persons is liable for that act in the same manner as ifit were done by him alone. x For deciding the facts that any act has been done in furtherance of common intention, it is necessary to asses the evidence minutely and to record a clear finding on the material available on record. How a person by any of his acts is liable for commission of any odence in furtherance of common intention. If that person neither took any part in the crime nor assisted the other accused person, who committed the crime, Only because prior to the incident he was in the company of other accused, who committed the crime, that alone, is not suhicient to hold him guilty for committing the odence in furtherance of common intention. In the instant case, Munendra and Ganesh were together prior to the incident but when Munendra inflicted injury to Shankar Prasad Tiwari with lmife, the appellant neither assisted ‘ § " f J 1 l i ] I , The judgment of conviction and rordar of sentence passed by the trial Court against the appellant under Section 326 of the IPC is <He shall be set at liberty forthwith // £ / r VK/ S&‘ 326 set‘ aside of the IPC. The appellant is acquitted of the charge under Se/cti/OJV ' 7// .. t Sunita 1 to (r ’