HIGH APPELLANTS COURT OF CHHATTISGARH BILASPUR Hon’ble Shri Ra'leev Gugta, C.J. & Hon’ble Shri Sunii Kumar Sinha J. CORAM: Criminal Agpeal No. 468 of 2003 1 . Shivbagas S/o Nand Ram Binjhawar, Aged about 30 years Rajkumar S/o Mukunda Singh Binjhawar, Aged about?6 years Parmeshwar Singh S/o‘ Hiragiri‘ Goswami, Aged about 25 years All resident of Village Sildaha, Police Station Ratanpur, District Bilaspur (CG) r Versus State of Chhattisgarh Through : Station House Officer Police Station Ratanpur, District BilaspUr (C'Gys- RESPONDENT APPELLANT RESPON DENT Q Aggearan ce: Mr. Ashok Swarnakar, Counsel for the appellants. Mr. Praveen Das, Dyi Govt. Advocate, for th State. And Criminal Aggeai No.'715 of 2004 Pradeep Kumar, S/o. Jamuna Prasad, aged about 35 years, R/o. Village Sildaha, Police Station Ratanpur, Distt. Biiaspur (C.G.) Versus ( State of Chhattisgarh Through: Station House Officer Police Station Ratanpur, District Biiaspur (C.G.) I ' " s under Section 374 (2) of The Code of Criminal Procedure) \,x: “(A / e (AQQeal 2 Criminal Agpcals No. 4§§ of2003 & 715 of 2004 JUDGMENT (23 .07.20C-,9), Following judgment of the Court was delivered 'by Sunil Kumar Sinha, J. (1) Appellant 'Shivbagas has been convicted u/s 302 lPCr and appellants Rajkumar,'Pa'rmeshwar Singh & Pradeep Kumar havevbeen convicted u/s 302/34 IPC and all have been sentenced to undergo imprisonment for life and tto pay fine of Rs.200/—, by the Sessionsz'dudge, Bilaspur in Sessions TrialiNo. 72/2002 on 19m 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‘Aroa. Deceased Tarachand was a member of the' society. He was entrustedyylth the work of issuing transit passes to the vehiclesxfor the sand extract from the mine site and to realize appropriate amount of royalty. 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 dutyin place of Naresh. Deceased Tarachand and Maharaj Singh (PW-2) were present in the .ofhce. Shivbagas used to supervise, the aforesaid work. The case of the prosecution is that on 27.102001, Shivbagas found that one Amrit Singh had taken the sand without paying the royalty, therefore, he along with 3 other appellants namely Rajkumar, Parr‘neshwar Singh & Pradeep Kumar went to the mine office andstarted 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 appellantsare that they encircled Maharaj Singh (PW-2) at the time of assault. After sometime, Tarachand died on the spot itself. ln the next morning, Maharaj Singh told the story to Tikaram (PW—1, brother of the deceased) who lodged the Merg intimation (Ex.—P/1 ). a 3 The Investigating Officer reached o e sce of ocn, fter giving notiS (Ex.-P/2 3) to the Panchas, ered inquest (EXP/4) or. the body of te deceased. He seized ne full shirt, one gamch one chad, one Ioongi, one shawl & pair of chappe/s from th place of occurrence under Ex.-P/.11.‘ Theroyalty colltion book was also seized une Ex.-P/13. Site pla were prepared nder Ex.-P/5 & P/1'5. he dea d of the dceed ws sent for its post—mortem t vert Hspital. R'tapur under x.~P/16"i"where the post—motem examinati as onducted‘by Dr. nil Kumar Shrivastava (PW-8), who prepred his report Ex.-P/18t He fund 2 bruise, size 3 inchs and 22 x 2V2 inches, over neand right or portin the hest. On ernal examination, he’ound that there as ract the rtilage portio of eck ad there was rupture o rig lobe of liver intra- a oa uo Sn th ca ok nd nt aa d’i o i u A h‘psm po Rpo te d an a l n ed Court of'Chief Judicial Magistrate, Bilasr, wh in urn cmitte the matter to the Sessions ourt, Bilaspur, where the tl a conducted and the accused/apllns wer convid and sentenced as afementioned. (3) The conviction t—he appellants is bsed up e eye itness account of PW-, Mahaj Singh. 2 ra d ,x‘ (4) Mr. Ashok Swarnar, learned coel erin o behal the t‘ PWZ, Maj in os o appellants, argued thathe version of — hara Sgh, de nt ls t ev i hld t able, o appear to be true. He ao argued hat en if he s e o be reli n role has ben attributed to appellants Rajkumar, Parmeshwar ngh & e Pradeep Kumar, therefore, their conviction'with the aid of Sectioni,,34 IPC cannot be sustained. He’ further argued that if appellant Shivbagas‘gis held ' u”dz‘mxm, 2w» v: z g Criminal Appeals No. 468 0f2003 & 715 of 2004 t th ne cU‘rrece a ce & P/ prpa h o a, di a' e é ec dr ns u T d boy eas a o Gonmen o an E, r on w c A a o x 2 e V ck lwe o of c int f w fure on ca n n n f ht with bdominal haemrrhge. The Atpsy urgeo opined at the use of death was shc a iernal hemorrhge antt was hmicidal n natre. fter receiving teot—ortem rert, the First Information ert was regiserd uner (Ex.—P/17) d fter completion of usua ivestigation, the charge-sheet was fil in the pu o t omd C ria ws peat e cte or oft a on th W k uns appag n f of e Si 4 ¥ CrimirialADDeals N0. 468 of2003 & 715 of 2004 responsible for the death of the deceased, his alleged act wdllld not constitute an offence punishable u/s 3b2’ IPC and he may be liable for punishment under some lessor Section preferably under Part—ll of Section 304 IPC. (5) On the other hand, Mr‘ Praveen Das, learned Dy Govt Adi/ocate appearing on behalf of the State opposed these arguments andV supported the Judgment and older passed by the Sessrons Court ‘1 (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessrons case (7) Firstly, we shall analyze the case of appellants Rajkumar Parmeshwar Singh & Pradeep Kumar who have been convrcted wrth the aid of Section 34 IPC Section 34 has been enacted on the prrncrple of Jomt liability in the domg of a criminal act The section is only a rule of evidence fand does not create a substantive offence The distinctive feature of the section is the e ement 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 I 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 Circumstances ln order to bring home the charge of common intention the prosecution has to establish by eVidence whether direct or Circumstantial that here was plan or meeting of minds of all the accused persons to commit vie offence for which they are charged With ;‘h ‘ 5 Criminal Aggeals N0. 468 of 2003 & 715 of-2004 the and of Section 34 be It prearranged or on the spur of the moment but It must necessarily be before the commISSIon of the cnme The true contents of the section are that tf two or more personsllntentlonally do an actpmtty, the posmon In law Is Just the same as If each ofthem has done It mdtvrdually by himself The exrstence of a common Intention amongst the participants in a crime is the essential element for application of this section. lt is not necessary .thatithe 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! prowsion. Please see Anil Sharma and others —Vs- State of Jliarkhand_(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 domg 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 , ofthe deceased in the same manner as if it was done by him alone The] provision is intended to meet case in which it may be diffcult to‘ distinguish between acts of indiVidual members of a party who act in 7 A, ‘ 't i :tyewwzmtwmwwm‘ awawitXfgwtg 6 CriminalvAQgeaIs No. 468 of 2003 & 715 of 2004 d furtherance of the common intention of all or to prove exactly what part was taken by each of them. x 9x. (8)‘ It was further held by the Apex court in‘the matter of Dani Sihqh Vs- state of_3ihar, 2005 scc (Cr_i) 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 difficuit to prove even the intention of 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 evtdence of facts, Circumstances tand conduct of‘the accused from which‘Stheir common intention can be safely gatheredl In most cases, it has to be inferred from the act, conduct or other relevant circumstances of the‘case in hand. The totality ofg‘the circumstances‘rtmust be takenlf‘into consideration in arriving: at a conclusionwhether'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 3f the common intention is an incident of fact and not of law. ‘ I i‘ / y ’r‘ (9) Therefore it is clear that merely on account of presence at or‘hear the scene of occurrence Without domg anything more Without even A carrying a weapon and Without there being a feature of sharing common intention, a person could not be conwcted With the aid of Section 34"IPC for the offence committed by the other accused. ;v"’\ (10) PWe2, Maharaj Singh, deposed “that on the fateful night, hervvas present along with Tarachand at the scene‘of occurrence. At about 7.5.30, :1 t Mummy my m: W 1 t Vemsww m 2p 7 . r/ov , Criminal Appeals No. 468 of 2003 & 715 0f2004 ‘ \ 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 appeiiants 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 aisovpulled Tarachand". On the above evidence, led by the sole eye witnessiMaharaj Singh (PW-2), though the presence of appeliants 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 wrth co- appellant Shivbagas to commit murder of the deceased The Initial case of the prosecution was that these appellants had enCircled Maharai Singh (PW-2) while the assault was being given by Shivbagas but Maharai 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 geing Withou‘ 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 8 Criminal Appeals N9. 468 of 2003 & 715 of 2004 (11) in our consxdered vww on the above eVIdence these appellants namely Parmeshwar Slngh Rajkumar & Pradeep Kumar cannot be held Ilable for punishment u/s 302 With the aid of Sectlon 34 IPC. (12) So far as conVictIon of appellant Shlvbagas Is concerned the argument relatlng to testimony of Mahara} Smgh (PW 2) being unreliable cannot be aocepted. 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 implica e the appellant in crime in question Some minor contradictions hnve been 7) 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 ln Para—10 of his eVidence this Witness has categorically denied the suggestion, that Shivbagas did not assault the deceasedr We fully rely on the testimony of PW-2 Maharaj Singh” and hold that it was established by the prosecution that appellant Shivbagas alone assaulted the deceased With hands and tist due to which the deceased died Therefore the compliCity of appellant Shivbagas in crime in question was fully established l .y i (13) Now we shall consider the last argument of Mr Ashok Swarnkar It contes in the eVidence of PW 2 Maharai Singh that Shivbagas came to the scene of occurrence and started abusmg Tarachand Admittedly, according to the prosecution, he was abusmg 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 lt shows that he has no intention to cause death of the deceased There was no i i L t ‘ i l 1 x . 9 _ I crimmal Appeals No. 468 ofzvoo3’& 715 of2004‘ preparation or premeditat'on and no arm was used by appellant Shlvbagas It appears that m heat of anger he gave one kick to the deceased and threw him on the ground due to which, the deceased received the above V Injuries and succumbed to those Injuries In the facts and Circumstances of the I‘ase though It appears that there was no Intention on the part of appellant Shlvbagas to cause death of the deceased but It cannot be dented that he was havmg knowledge that his such act was llkely to cause his death Therefore In our conSIdered View appellant Shlvbagas was not tlable for punishment u/s 302 IPC and he would have been punished u/s 304 Part~ll IPC (14) Accordingly, the conviction and sentence Imposed against I appellants Ralkumar Parmeshwar Slngh and Pradeep Kumar u/s 302/34 IPC are set aSIde They are acqUItted of the charges framed against them Appellants Ralkumar Parmeshwar Slngh and Pradeep Kumar are on bail Their bail bonds are dlucharged (15)‘ The conVIctIon and sentence awarded to appellant Shlvbagas u/s 302 IPC are also set aSIde Instead thereof he Is conVIcted u/s 304 Part~ K tl tPC and sentenced to undergo rigorous Imprisonment for 8 years lt Is ‘ V V stated that appellant Shlvbagas Is In Iall Since 1 11 2001 He shall be entitled to set off the period T already undergone by him I : ‘1? a Sdl t 7 I w Sd" I . g It asllch-eugssnga ~ Sun” , _ v , \,..\\ g I \ ~ I r §3g§gsmha * f ‘ vatti /