7^ .^ ^- 11SS1 (^ Oiyision Bench (.rinnndi IN THE HIGH COUFCT OF MADHYA PRADE;SH AT JABALPUR \^ /96 APPELLAKTt' APP'LICAITT Crimlnal Appeal No, .--2> ^^ KJl—---' RESPONDENT i NON-APPT..ICANT ^? ^A ^ Itv^ari. Bai,*^ ^' W/o Ramlal aged 2.2 years e^csQ^c- ^\-s^. ^ 2. Bhag^vati Bai, W/o Dhanaran-r Dhoba, aged about 4 5 ye ars o 3« Dhanarom Dhoba, B/o Charaar singh, aged about 50 years^ All x are residents of vlllage Khainaria, Thana Tainnar^ Distrlcts Raigarly VERSUS State of Mladhya Pradesh, . through ^. O< T amn a2:;-< CRIMINAL APPEAL UNDER SEC<, 374 Cr.P.C.. XI-HC-22 3T1^T^T f^TNiW^T $b<4ich^f?cT V.- 3^ ^TPTRPT, ^WKo, is«nwy mRdTSb^l^ 3ll^l ^(31 <=n _.Cw.R.. ^.7^Q .^ ^o.lOO/^fc 200 3TI^T?^ITW^N m^isioa Bench : Hoa?ble BiuiJusticelK0 15/12/2005 Shri .^waclh Tripathi, Shri Ashish Shukla, Akhil Mishra, Paiiel Lawyer) for Uie respoudent/State. Oral JudgiQ.ent, This a^ppeaJ is du'ec and senteuce passed by Raigarh, in Sessions T^ial No,19/9'5 wlierc.by the leamed Additional Sessions Judge, guilty for comniission of Section 34 ofthe I.P,C, DEhmiejraoi Dhoba zuider Sectioii 302 of ti.ie I.-RC, senteuced iiziprisouBient for llfe, The prosecutioii cej that your case is pendiiig ^ which Bhagwati Boi aiid 11 of him.. In flie m.eantmiel chl^Td41-1 W^fr* ^'^Sf <Ri^l< ^3Tf^T3TI^T 1. &.?<J^ Couiisel for the. appellaiit^ Additional Public Prosecutor ^^ -^^ Shri |ed agaiiist fhe judgment of coiivictioii the IInd Additional Sessioiis Judge, after holding It^vgiri Bai & Bhagwati Bai offeiice under Section 302 read with each of the ,accused to undergo ,e, iii brief, is tliat on 20/11/1994 at about 7.20 p.ni, Ranilal 4uasTelec1 ^ith Bhagwati Bai iii viUage Khajiihariya-, He h^r to aJlow hiai to see his wife (Acciised Ilwaii Bai), 011 which Ujja^al Sio.gh (suice cleceased) asked flieni 511 why yoii people are quaiTelliiig, upon wad Bai after al3using him caught hold the ofher accused uaiiiely Dhanaram Dhoba caine with a Tabb41 (Spade) aiid after se.paj'atirxg his wife (<fli^^) %lf:fi^®tl^SSSIBSJij?%^^^^^S§SIS XI-HC-22 3^T^T l^ft^'^T^i sf^^i^) ^Fw '3^r '^Fn^pT. ^°d1y4^, ifN^iray ^ra^nwHi^ "^ 200 'sn^T'^nwHft^f tbat and daughter naBiely Bha^¥ati[ Ujjawal Singli on his neck wifh. Ujjs-wsl Siiigh died spontsjieous] PoUce Station: TaBiiiar, iipon (Ex.P/3) under Section 302 of th| took up the iiivestigation ajrid u|e: After grving iiotice (Ex,P/8) he the dead body of Ujjawsl Singli to Prioiary Health Centre, Taoin^ conducted the postmorteni on prepared tlie postm.ortem report tlie accused/ appeUaiit Dhmiara4i (Ex.P/2) regardmg the place wh^ saine was talcen iiito custody und| iiivestigation, charge-sheet was First Class, Ghargho<| case to tlie Sessions Judge, Rai^ Sessions Juclge received the case The prosecutioii io. order t4 accused/appeUaiits exaiauiecl uii^ leanied Sessions Jiidge recorded persons under Section 313 ofthe prosecution €videiice aiid stated pr^parctd a4cl '^FlferiN WTOf ^ fe^ if^^li '^3?f^T^i]^T Bai aad Ife/vad Bai, attacked Tabbal, as a rcsult ofwhich tr. The aiatter was reported in ^hich the case was registercd I\P,C. The Investigatiiig Of&cer |ent to the place of occurreiice. Pa-ncliaiiama (Ex, P/ 9) of sent the same for postinortem ^ur, where Dr. A.K. Mishra (PW-5) ^he body of Ujjawal Shigh aud JEx.P/5). During poUce ciistody, Dhoba g^ve a memorandzim |tre he kept the TabbsJL aiid the. 3i,r (Ex.P/1). After completion of fUed iii the Court of Jtidicial la, who iii tum conimitted tlie. ^arh,. from where IInd Additional (br teial. establish fhe charge against tlie le witnesses. On the ofher haiid, the stateiaents of fhe accused iCr.P.C., m which they denied the they are io.nocent and have been -t- [Tft^ ^R^^ XI-HC-22 3^ ^Ni<n^, ^T{I<M<I<O, ^i<ni^< 311^1 <451<h WffFTTgWTg?^^^"^""^"^* ^* 200 f^rc^ 3TI^T^)T f^rw^n^T ^TT^^cT ^^ i— W^TS^TTW^f^T -?>- falsely iBipUcated ta fhe assaulted fheni aiid they go^ Leaned Additional ciime, UjjawaJ Singh aiid Raailal fhemselves medicaUy exanihied. ^essioiis Judge after lieariiig fhe argunieiits of leanied Addit^nal Piiblic Proseczitor and fhe leamed coTinsel for the accused/a^peUaiits, coiivicted ad sentenced each of the accusecl as meiitionec3 We have lieaj:d Shii 4^7^dh Tripatiii, leamed counsel for the accused/appeUaiite and S||iri Ashish Sh-akla^ Additioiial Publlc Prosecutor with Shri Al<piil Mishra, Paiiel Law^^er for the respoudeiit/State, perused evidence available on recordl The fact of honiicidall not been disputed by leani^ Apart froni tliat, froni the e^| Ghasiyaaa Bai, PW/2- Su] W/5- Dr. A.K. Mishra, w body of Ujjawal Singh aiid estabUshed that fhe deatl-1 p' iiature. Now, coinirig to fhe inj argued that fhe fiiidiii^ cbl<ll<rt<{l^ ^l^cll ^fe^'<F^«l< ^3T^T3TI^T iii paragraph oiie ofthe judgment. ^ie judgiiieut offhe tdal Coiirt ajid the nature of death of Ujjawal Siiigh has ^d couusel for fhe accused/appeUaiits. idence of eye-witaesses naoiely PW-1 - lochana and the medical evidence of |io coudzicted the postaiortein ou the |also froisi the postoiorteiii report, it is of Ujjawal Siugh was hoinicidal in ^olvemeiit of the accused/ appeUants isi fhe crmie ui question, lean^ed counsel for the acczised/appeUaiits of fhe trial Court agaio.st the accused/appellaiits Itwari ^ai aad Bhagwati Bai regardiag their iiivolve.Bieiit ia tlie crioie iii question aiid convictbig tiieni iinder (<ft^y^) XI-HC-22 an^r^r f^rf^3TliRT Sh^icb^cT Sb^l<^<T V, \.—' 3^F •<<|<<K'|<(, ^Tny^<g, f^rrey [?TM5|C»» *<i*i(^i (^tij^ "-------•••••^^ 200 @ W^T?^TWH{^T -^^ Section 302 read with Secl fhe saBie is not based on th| On tlie other hand, Prosecutor for the responclej trial Cozirt. In order to hold the at of tlie I.P.C., Hon'ble. tiie Vs- qf trP,j held that flie Section 34 U create a szxbstaritive ofFenc4 chi<<I<rt41»l^i*ldT^'te1c^'^R5K ^3Tf^R~3TT^r for aa offeiice conimitted U ^ion 34 of fhe I.P.C., is bad in law, as evidence available on record. Shri Ashish Shukla, Additional Public nt/State supported fhe judgiaent of the bcused guilty with fhe aicl of Section 34 Apex Court iii tiie matter of reportcd ift 2004 AIR 8CW 810 has only a rule of evidence and does not The distmctive feature offhe Section is the e.1enient of participati^n ui action. The liability ofone person y aiiofher ia fhe cozirse of criiaiaal act perpetrated by several p€2|sons arises under Section 34 if such criiniiial act is done io: fulrtherarice of coninion iiitention of the persons who join ia coni^ittuig the crisiie, Such uitention caii only be iaferred froai the c^rcuBistaiices appearing froin tbe proved facts of fhe case aad the ^roved circTiinstances, In order to brmg hoine the charge of coia^ion iatention, the prosecution has to estabUsh by evidence, whepier direct or circTinistaiitial^ that there was plan or Hieetiiig of niiijid ofall fhe accused persons to coniinit the offence for which fliey are charged wifh fhe aid of Section 34^ be it pre-arraiiged or o^ the spur of Bionient, bzit it isiust necessarily be before the coniiaission of fhe crioie. The tnie concept of Section 34 is tijiat if two or more persons mteiitionally (<f^y^) XI-HC-22 3TI^T^)T f^WW^T ^*4icb<if^a Y.- 3^'^rFTRW, ^Tfl^^Ko, T®l<rtl^y 3ll^lM5|Ct» WPTFTTg?TnW^"""""""""' W^ 200 W^T ^•<TTW^^T -b- fheni has doiie it iiidividil comjnoii uitention pjiiongs| esseiitial eleBient for app] Tiecessaiy that the acts <| chi^I<n41^ WRTf^'fe^ <fa^i< ^3Tf^TW^T do aa act joiiifly, fhe positi^n ixi law is just the. saiiie as if each of coBiHiission of aji offence j4>iiitly Diust be tiie same or identically smiilar. The acts inay be been actziated by fhe sejiie| tlie provision, As a result <|>f applicatioii ofpniiciples enuiiciated io. Section 34, wheii aii ac| read with Section 34 ia law| ^/ fhe act wliich caused cleatiil if it was done by hioi alon^ case iii which it nia.y be ^ iiidividual iiiembers of a a!ly by himself. The existence of a t: flie participaiits ia a crieie is the tication of this Section. It is iiot f fhe several persons charged with Idifferent iii character, but niust have com.nioii in.teiition io. order to attract ^used is coiivicted under Sectioii 302 it meaus that tiie accusecl is tiable for |of the deceased ia the sassie iiiaaiier as , The provision is iiiteiided to nieet a |ifficult to distiagiush between acts of ^arty who act io. furfherasice. of fhe coniiiioii iiiteiitioii of all or t^ prove exacfl;vv what part was taken by each of fhem., t In fhe llght of the. ab|pve priiiciple, now we shall prcxpeed to exainuie the evidence addi|iced by the prosecutioii ui tliis case, The evidence of PW/ 1-Gha^iyaiii Bai is to the effect that Bhagwati Bai aad Itwari Bai werc q4aiTeUiag aiid Kaisdra i.e,, Dhaiiaram Dhoba attackecl Ujjawal Sii) of Ujjawal Siiigh, When sh^ weiit to iiitervene, fhe Tabbal hit 011 her cheek. Why Kaiidra att| gh with Tabbal which hit 011 fhe. neck ^.cked Ujja^val Siiigh was not kiiown to (<^y^) XI-HC-22 s^r^i Rvii<^ 'snt^i ^IW^l •<, -r -^^ ^N(<ri<LI, ^tW^»^<vtwy sn^r 'sra^ ^?ro^rf ^^ *""<*"cft*s"*""""<"0*'*"" ^^ 200 ^^s?"" 3H^y ^^H^R ^rfiPf -^ her. The evidence ofPW/2Sulcj the trial CQurt has coiivicted ap^eUaats Bhagwati Bai aiid Ifc^ari Bai wifli the aid of Section 34 4fthe.I.P.C., is to tiie effect fhat Bai Itwad Bai bot4 the souud ofciueiTellmg she ca^ caaght hold of Ujjawal Siagh with Tabbal fix^m his housd the which hit ou the left si{ie of ueck of Ujjawal Siiigh^ as a result of vAicli he. feU dowu aad away, Sioiilar is the evideiice of P^V/8- Itwar Sirigh, Prom evidence, Bai Bai were sh| Singh, When Ito-ari Bai aiid picture, When Bhagwati Bai and ^Fif^ft^ 'RT^f? "9 ft^t <fa^l< ^^cR3:r?^r *hana, based cn whose evidence were quarrclliag aiid on hearing e ozit, She saw tliat both of flieni 1 at that time, Dhaiiaraoi Dhoba mid attacked Ujjaival Siiigh with thereafter Dhaiiarein Dhoba raji it cannot be uifeiTed that Itwari feiriiig iatentfou with Dhanaram Dhoba regardiag assault wifh T^bbal to cause deatli of Ujjawal pliagwati Bai were quarreUiiig, Ujjawal Singh (siace de.cea.sed) a4vised them. not to qiiarrel as the case is pendiag 011 which Itwaji qei Bhagwati Bai caught hold of Ujjawal Smgh, TiU that time l^haaaram Dhoba was not m the Ifa^ari Bai caught hold of Ujjawal Shigh, Dhaiiaraei Dhoba canie f4>m inside his liouse with Tabbal aiid attacked Ujjawal Siagli wifh|t]ie sasiie on the left side of his neck- ' Therefore, it caiinof be s^id that Itwori Bai aad Bhagwati Bai were shariiig uitention with Iphanaram Dhol^a. Thercfore, flie fiiidiiig to that effect of the trisi for commission of murder of Ujj^wa| Siagh is not basecl on the ['(fr^^fe4 ;ourt malsiiig theni joiiitly Uable F= ^ XI-HC-22 37T^[^T W{^ 3TI^T ^ri^ ^f^a Y"; -3^ '^IHId^. ^?l1^4l<o, 'f^TRT^ 3ff^r T^T^ ^rra^si 9i»w^~ "WI. 200 •^^T' 3TI^I'^TT^R'?rftcf ^ ^l - legal evidenGe, there.fore, fhe fi| Court csjinot be sustained. As fa^ as accused Dhaiif Ghasiyani Bai aad PW/2 - Su^ Iiave categoricaUy stated tiiat with Tabbal from his house aiid left side ofhis ne.ck. The Tabb^l iiistaiice of accused/appe-naiit iafoniiation giveu under Sectio^i Further, the eyidence of the e^/ej the Biedical evidence of PW/5 D] he conducted the postmortem 21/11/ 1994 euid he noticed th^ tlie left ear on the temporal pa^ from fhe left eaj- extendhig tiie size of 2 %" aiid widtii 5 %"\ mussels/ ve-ssels, ner^es werej were aiso cut Clotted blood Therefore:, ia view of tlie above| '(Ex/P/5), tlie oculsj: evide^i eorroborated, Therefore, findi^g author of miinier of Ujjawal SiiJig aiicl tlie saine cloes not rcquire 5|iclijig to that extent of fhe trial ^l^t<rt^1l ^TFf^f ^ 'fe(st <n3i^.« '^>'3rf^R3T?^T ^Kioi Dhoba is coiicenied, PW71 lochaiia aiid PW/8 - Itwar Singh ^cciised Dhaiiaram Dhoba came ^ssaulted with tiiat Tabbal oii the io qziestion was recdvered at the iDhaiiej'aBi Dhoba basecl 011 the 27 of the Indiaii Evidence Act, ^witnesses staiicls corroborated by J-. A.K. Mishra, who has stated that ^ii the body of Ujjawal Singh cn it tiiere was incised wound below pietal region. The injury started |ip to parietal region whicli was ia a-iid it was deep up to tlie bones, czit ejid fhree cervical vertebras ^ present ajid bleeduig was fhere, evidence aiid postmortem. report ^ce of . the witnesses stands of the trial Court regardiiig the |igh is based on'fhe legal evidence |iy iaterfereiice by fhis Court. atiy [^ft^^fe^ XI-HC-22 W^T^T '^;ti?T3TTi^l s^^ict> <!H?^a v^,- •3"^'^W^ 'S^T^ fa<r(l^ 37I^?T IR^ *18^CfS85htiieba?"'aa" '*"*'**'***' ***<ff?^ 2(W) "^5^T' 3TT^T '^^T^ ^Tftcf %- frotxi Learhed counsel for thei from Uie facts tlie offence agaio.^ travel beyond Section 304 Part I| accused persons were also assa^ fact Uas been corroborated Mishra and Investigatiiig Officer| As fai' as fhe questipn o^ persons is coiicenied, froHi fhej aad Irivestigatuig Officcr, it ht accused persons had received i4 cross-exajiiiiiation, Dr,A. K. exaixmied the accused persom iiijuiy report has not been ad^ record. It has not been said iiivestigation he came to fhe CG]|] the accused persons received evideuce tih.at the accused iiiciclent. From. flie evideuce, vAicy part cfthe judgnient, it is establ|shed ancl Bhagwati Bai were quarr^l Singh, accused^appellaiit DhaijiaTam deadly weapon atid attacked tljie c^l^fcl^l "RPraf '? FS^I <f^i-^K ^3ri^3T?^¥r accused/appeUajits argued flrat ;t tiie accused/appeUaiits does not ofthe I.P.C., and fmlher that, the ilted by complamt party aad that flie eyidence of PW/5 Dr. A.K. causing injuries to the accused evidence of PW/5 Dr. A.K. Mishra is not come on recoixl fhat fhe ii-jjiuies in fhe sanie iacident In tlie MMira lias stated that he had also regardiiig the injuries mid tlie luced in evideiice aad placed 011 iiivestigation officer that during iclusion tliat iii the saoie io.cicleiit pie iiijuries uor there is defence pe^soiis received tiie mjuries ui tlie ^y has been i^ferred io. fhe ea-rller tliat when accusecl Ito¥ariBai Umg mid caught hold of Ujjwal Dhoba caiixe witii Tabbal, deceasecl oii the left side of liis [^^T^ZT XI-HC-22 3rTl^['^[ f^ri^^R^T 5b^lct>> ^11 ^? -^•^FIR^. ^WIS, fa<nfMi< 3T?i?T 'ERT^ ^S^^j $hN8^****'tt* a9"*<***'a ^^ 200 'fe^s?' 3T[^T l^raT ^H - ^'-. iieck ie, vital part offhe bocty, was siifficieut in the onliaary |il such a niaiiiier that the iiijury ofnattire to cause death. coilrse Fn:>m the evidence of Pl postmorterii report (Ex.P/5), it nerves ajid vessels were cut 011 afc Tabbal aiid fhree cervical vertelj view of the iqjury report ^ wifh which on the vital orgaii ofljl the accused, wifli the iiiteu1}i A.K, Mislira, opiiied that fhej liemorrhage leacliag to deatli vite1 portiqu offhe head by heay}} iii view of the above fact, fhe| Dhajis-raoi Dhoba uuder Sectiob Gourt e^aiiiiot be iiiterfered with, In the result, the appesJ. is Bliagwati Bei s-re a.cqiiitted rcad wifh Section 34 df accused/appeUent Dhaiim'am dismlissed, chi<Li{d4'i ^H<A*'?fe^t' <r^<^i< ^? ^Tf^TR 3T^[ W/5 Dr- A.K. Mishra, and the jis established that the niussels, ^couilt of tlie iojuries caused with ^ras • were also. ciit- Tlierefore,. iii Iso it is estabUshecl that fhe force he body the iojury was caused by ioii to cause the death. PW/S Dr, mode of deafh was excessive 4aused by excessive. iiijiiry on tlie sharp edged weapon» Therefore, convictioii of accused/appellaiit 302 of the I.P.C., by the tnal Ipartly atlowed. Accused Itwari Bai Jof the charge uncler vSection 302 tjlie I,P.C aiid fhe appeal of E|hoba, beiiig devoid of merit, is [^t^ ^n^^ w w XI-HC-22 ^TT^T^FT f<-li<=h 3T^T ^RW^ft^ Raju ^••^- ;• •: " ^ss -^pTi^/'§^Ff%,f^<yii<iy 3ff^r xra^ Hi^^l ^^jj^" ^**'*** "TF^ 200 IN^T' ^TT^T'^RTT^R ^Hf^T ~ (o- Shri Ashish Shukla, A<| rcported that Itwari Bai ali^ probation 011 04/08/2004. ^ therefore, she be released forth^ifh case, Sd/- S L.C. Bhadoo | Judge chl^Id141t 1TOT^f ^ 'fet3t <M^K ^3lf^W^7^T ; [Iditbnal Piiblic ProsecutDr ^ady beeii on permaiieut pia^vati Bai is stiU ui custody, ^ith, if not rec[uired ia any other Sd/- V.K. Shrivatava Judge ^.l^L^^_„„.-