-13 -'J'sy ^l /6-3 •// HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble5hrLSynUJ<ymarSinha,_J. Criminal Appeal No. 742/1994 Saligram and another Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Suni] Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA AJ^T^^ ' 'o— Sd/- Chief Justice •-^T-r Post for Judgment : /^'/OS/201 1 Sd/- SunilKumarSinha Judge p'z AMITA AWASTHI Digitally signed by AMITA AWASTHI Date: 2025.02.04 14:57:22 +0530 £g.. HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. CRIMINAL APPEAL N0.742/1994 APPELLANTS RESPONDENT 1 Saligram S/o Mukund, aged 22 years, 2 Nathuram S/o Sukuram, aged about 25 years Both Mahara- by caste, R/o Nandpura, Police Station Bhanpuri, District Bastar Versus State of Madhya Pradesh (Now State of Chhattisgarh), Through Station House Officer, P.S. Bhanpuri, District Bastar CRIMINAL APPEAL UNDER SECTION 374(2) OF THECODE OF CRIMINAL PROCEDURE Appearance: Mrs. Savita Tiwari, Advocate for the appellants. Mr. Akhil Mishra, Dy. Government Advocate for the State. JUDGMENT (18.03.2011) The following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1J. This appe^l is directed against the judgment dated 7 of April 1994, passed in S.T. No.551/^3 by the First Additional Sessions Judge, Jagdalpur (Bastar). By the impugned judgment, the appellants have been convicted under Section 302/34 IPC and sentenced to undergo imprisonment for life. \ ~.. ^' • .. • • .v^.: . ' ' "•"' .,\ • .^ . . -- . •• .. . sf3"1 s''v, ..£f CRIMINAL APPEAL N0.742/1994 (2) The facts briefly stated are as under: On 25.09.93, at about 7:00 p.m., the villagers of village- Amliguda were celebrating Nayakhani ( a village festival). Many villagers including deceased -Aaytu and his brother- Dassuram (PW-8) were also present there. The allegations are that the appellants came there and asked about deceased-Aaytu. When the deceased came before them, appellant No.l-Saligram took'out a Gupti and assaulted the deceased on his left thigh. Appellant No.2-Nathuram also tried to assault the deceased on his abdomen by knife, but the deceased caught the knife, due to which, he received injuries on his fingers. Thereafter, the appellants wenttowards village Nandpura. The incident was witnessed by many eyewitnesses namely Ku. Rama (PW-2), Tulsi Ram (PW-3) and Dassu Ram (PW-8). In the next morning, Dassu Ram (PW-8) lodged the First Information Report (Ex.P/13). The appellants were named in the F.I.R. The Investigating Officer reached to the place of occurrence, gave notice to the Panchas and prepared Inquest on the body of the deceased. The dead body of the deceased was sent for postmortem to Maharani Hospital, Jagdalpur vide Memo Ex.P/15. The postmortem examination was conducted by Dr.G.K. Agarwal (PW-5). He noticed an incised wound of 1 ^ x 1 x4 1/S inch on the left thigh of the deceased. On internal examination, he found that femoral vessels (artery and vein) were cut. The Autopsy Surgeon opined that.the cause of death was shock as a result of extensiS/e haemorrhage on account of the above injury and it was homicidal in natui^. The postmortem report is Ex.P/9. In further investigation, the appeltants were taken into custody and their memorandum statements (Ex.P/3 & Ex.P/4) were recorded under Section 27 of the Evidence Act and two Guptis were se'ized at the instance of the appellants vide seizure s memos - Ex.P/5 and Ex-P/6. The seized articles were sent 1 /''/ :y CRIMINAL APPEAL N0.742/1994 for their chemical examination to Forensic Science Laboratory, Sagar vide Memo Ex.P/16, from where, a report was received. According to the F.S.L. report, blood stains were found on the two Guptis seized on the instance of the appellants. The Sessions Judge did hot rely on the alleged recoveries of weapons. The convretion of the appellants is based on eyewitness account of Ku. Rama (PW-2), Tulsi Ram (PW-3) and Dassu Ram (PW-8). (3) Mrs. Savita Tiwari, learned counsel appearing on behalf ofthe appellants argued that the involvement of appellant No.2 is suspicious; there is no evidence that he also assaulted the deceased by Gupti; there is also no evidence to show that he shared common intention with appellant No.l-Saligram for commission of murder of the deceased; therefore, he deserved to be acquitted. So far as appellant No.l-Saligram is concerned, she argued that the evidence would show that he had no intention to commit murder of the deceased, therefore, he would not be liable for punishment under Section 302 IPC and his case may be considered for punishment under some lesser Section preferably Part 1 of Section 304 IPC. (4) On the;other hand, Mr. Akhil Mishra, learned Dy. Government / Advocate appearing on ^behalf of the State, opposed these argumentSk and supported the judgment passed by the Sessions Court. (5) We have heard learned counsel for the parties at length and • ftave also perused the records ofthe Sessions Case. -y CRINIINAL APPEAL N0.742/1994 (6) Firstty, we shalt consider the evidence against appellantNo.2 Nathuram. He has been convicted with the aid of Section 34 IPC. Dassu Ram (PW-8) deposed that he saw both the appellants coming there and appellant No.1- Saligram assaulting his brother by Gupti. Though he stated in the F.1.R. that appellant No.2 - Nathuram also made an assault by a knife on'the abdomen of the deceased, and the knife was caught by the deceased, who received injuries on his fingers, but he did not depose tike that in his Court evidence. tn fact, the story relating to attempt of assault by knife by appellant No.2- Nathuram does not find place in his Court evidence. Even the Doctor has also not found any injury on the fingers ofthe deceased. This creates a doubt ori the testimony of Dassu Ram (PW-8) and also on the alleged role attributed to appellant No.2- Nathuram. Ku. Rama (PW-2) is a child witness. She was aged about9-10 years on the date of the incident. She is the sister of the deceased. She deposed that both the appellants assaulted the deceased causing pierced wound. She cannot tell as to what weapon was used by them. Her brother fetl down .after receiving the injury. He received injury on his abdomen. He died on the spot. The appellants gave two assautts to the deceased. In cross-examination, she deposed that both the appellants had assaulted the deceased twice by Gupfi. Both had assaulted together. She had denied the suggestion that the assault allegedly made by appellant No.2 -Nathuram was resisted by the deceased by holding his Gupti. Tulsiram (PW-3) also dep.osed in similar fashion. He deposed that CRIMINAL APPEAL N0.742/1994 the deceased was assaulted by both the appellants by Gupti. The assault was made on his left thigh. In cross-examination, he deposed that the deceased had also received injuries on his fingers, because, he caught the Gu'pti of appellant No.2-Nathuram. (7) As we have already seen, there was only one injury on the left thigh of the deceased. The case ofthe prosecution is that the said injury was caused by Saligram (appellant No.1). The case of the prosecution in the F)R regarding appellant No.2-Nathuram was that he also assaulted the deceased by Gupti on his abdomen, which was caught by the deceased and the deceased received injuries on his fingers. But we do not find any injury on the fingers of the deceased. Even Dassu Ram (PW-8) did not make allegation of such overt act by appellant No.2- Nathuram in his Court evidence. The evidenceof two other witnesses i.e. Ku. Rama (PW-2) & Tulsiram (PW-3), regarding the alleged overt act of appellant No.2 Nathuram is not only eontradictory, but it is also not supported by the medical testimony. The above discrepancy relating to the part played by appellant No.2- Nathuram, in the evidence of the 3 eye-witnesses, makes their evidence unreliable so far as appellant No.2-Nathuram is concerneci and the role allegedly attributed to appellant No.2, as / a.bove, was not proved ^against him by the evidence of these witnesses. On appreciation of the entire evidence of the above 3 eye-witnesses; though it was established that the appellant No.2 Nathuram was also present at the place of occurrence at the time of .'Y •^y ,-.-:-- 1 ..' u '^ K^-^y CRIMINAL APPEAL N0.742/1994 the incident along with appellant No.1 Saligram, but it was not established as to what overt act he played in the said incident. (8) Section 34 has been enacted on the principle of joint 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 circumstances. 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 eommit 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 thgt if two or more persons intentionally do an act jointly, the ptisition in !aw is just th^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 section. It is not necessary that the acts of the SeveFal persQns charged with commission of an offence jointly must CRIMINAL APPEAL N0.742/1994 y. 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)^ SCC 679. The Supreme 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 ctear. 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 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 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 betwfien acts of individual members of a party who act in furtherance of the- common intention of all or to prove exactly what / parttWas taken by each ofthem. '~-» (9) ln Danf Sinah -Vs- State ofBihar, 2005 SCC (Cri) 127 (oara 20) the Supreme Court held that to constitute common intention, it is necessary that intention of each one of the accused be known to ;fhe rest and shared by them. Undoubtedly, it is difficult to prove CRIMINAL APPEAL N0.742/1994 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 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 of fact and not of law. (10) Incase on hand, we do not findany evidence to hold that the intention conceived by appellant No.l-Saligram was known to appellant No.2-Nathuram and shared by him. The presence of appellant No.2-Nathuram was established by the prosecution, but the prosecution has not proved any circumstance or conduct of appellant No.2, from which, sharing of his common intention with appellant Ncyl-Saligramcan be gathered. There isdiscrepancy in th6 evidence of eyewitnes'ses relating to the alleged conduct of appellant No.2-Nathuram and except hispresence, nothing can be gathered with certaintyfrom theirevidence. Therefore, we are ofthe view that though the presence of appellant No.2 at the place of occurrence was established by the version of the prosecution t^IElt 'i ..iiti: T^^^^^^S— CRIMINAL APPEAL N0.742/1994 witnesses, but it was not established that appellant No.2-Nathuram shared common intention with appellant No.l-Saligram to commit murder of the deceased or to cause such bodily injury to the deceased. (11) Now we shall examirie the case of appellant No.1. The case of the prosecution is that appellant No.1 assaulted the deceased by Gupti on his left thigh, due to which, his femoral vessels (artery and vein) were cut. (12) In Virsa Sinah -Vs- State of Puniab. AIR 1958 SC 465, it was held that the prosecution must prove the following facts before it can bring a case under S, 300 "thirdly"; First, it must establish, quite objectively, that^a bodily jnjury is present; Secondly, the nature of theinjury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injujy of the type, just described, made up of the three elements set out above, is/sufficient to cause death in the ordinary courseof / nature. This.part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution, the offence is myrder under S. 300 "thirdly". It does not matter that there was no ".inteotion to cause death, or that there was no intention even to CRIMINAL APPEAL N0.742/1994 cause an injury of a kind that is sufficient to cause death in the ordinary course of nature, or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely Qbjective inference, the injury is sufficient in the ordinary course of nature to cause death. The question whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. . (13) In Gokul Parashram Patil vs. State of Maharashtra. AIR 1981 SC 1441, the Supreme Court repeated the principles of V?rsa Singh(Supra), that if an injury is held to have been intended by the assailant and is further found to be sufFicient in the ordinary course of nature to cause death, it would attract clause thirdly of Section 300 of I.P.C. and that, therefore, its author would be liable to pynishment under Section 302 thereof. (14) The guestion thus arises as to whether appellant No.1- / Saligram, in fact, intende<J to Cause the particular injury, which was found onthe body ofthe deceased and was sufficient in the ordinary courseof nature to cause his death. In Gokul Parashram Patel (SuRra), the Supreme Court hetd that the solitary blow given by the f"'appellant tci tfie deceased was on the left clavicle- a non-vital part -3^'^ ,,.^,^' CRIMINAL APPEAL N0.742/1994 and it would be too much to say that the appellant knew that the superior venacava would be cut as a result of that wound. The Supreme Court observed that even a medical man perhaps may not have been able to judg'e the location of the superior venacava with any precision of that fype. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or acddental circumstance. It also referred to the decisions of Hariinder Sinah v. Delhi Administration. AIR 1968 SC 867 and Laxman Kalu Nikalje v. State of Maharashtra. AIR 1968 SC 1390. (15) If we examine the case of appellant No.l-Saligram on the above principles, it does not appear that appellant No.1 had an intention either to com'mit murder of the deceased or to cause such bodily injury (to cut femoral vessels) to the deceased. The solitary blow given by appellant No.1 to the deceased was on his left thigh, which admittedly was a non-vital part and it cannot be held that appellant No.1 knew that by giving that blow on the said portion of thigh, the femoral blood vessels would be cut. For the above reasons, the actof appellant N.o.1 would not be punishable under Sectr6n 302 IPC and he would be liable for punishment under Section 304 Patt-1 IPC. . (16) 'Accordingly, the appeakis partly allowed. The conviction and sentence awarded to appellant No.2- Nathuram under Section 302/34 IPC are set-aside. hle is acquitted of the charges framed against him. The conviction arid sentence awarded to appellant 5 No.l-Saligram under Section 302/34 IPC are also set aside. Instead /•V .-^' CRIMINAL APPEAL N0.742/1994 thereof, appellant No.l-Saligram is convicted under Section 304 Part-1 IPC and sentenced to undergo R.l. for10 years. We gather from the records that appellant No.1 was arrested on 28.09.1993 and was released on bail on 07.11.2003 by order dated 21.01.2003. Hence, he has already served more than the sentence awarded to him. Therefore, he is not required to surrender. He ison bail. His bail bonds are cancelled and surety stands discharged. Sd/- Chief Justice Sd/- Sunil KumarSinha Judge shyna '•*^- M ^ ^ll! :