• . si \^ l^ HIGH COURT OF CHHATTISGARH, BILASPUR ^ CORAM: Hon'ble Shri Raieev Gupta.C.J. & Hon'ble Shri Sunil Kymar^mha^J, Criminal Appeal No. 55 of 1990 Satya Prakash alias Lallu & Others Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGhflENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA .9 ^L^/y^€=i o Sd/- Post for Judgment ;/i/07/2010 Sd/- "—^-— /J/07/2010 /£'\ \^y HIGH COURT OF CHHATTISGARH. BILASPUR CORAhfl: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT Criminal Appeal No. 55 of 1990 1. Satya Prakash alias Lallu S/o Shri Ganpat Lal, aged about 27 years 2. Khedu S/o Shri Mehatar Dhomar, aged about 25 years 3. Dwarka S/o Shri Mehatardas aged about 26 years Dead- Name deleted vide Court orderdated 18.6.2010 All residents of village Bhanpuri, Thana- Khamatrai, District Raipur Versus State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedyre, 1973) Appearance: Mrs. Renu Kochar, Advocate for the appellants. Mr. Akhil Agrawal, Panel Lawyer for the State. JUDGMENT (/^-.07.2010) Following judgment of the Couri: was delivered by Sunil Kumar Sinha. J. (1) Being aggrieved with the judgment dated 22.12.1992 passed in Sessions Trial No. 24/88 by the Second Additional Sessions Judge, Raipur, the appellants have preferred this appeal. (2) The appellants and their co-accused Vijay Kumar all were convicted u/s 302/34 IPCand sentenced to undergo imprisonment for life. '^®;^». Criminal Appeal No. 55 of 1990 1 (3) Appellant No.3 - Dwarka died during the pendency of the appeal and his name has been deleted vide Court order dated 18.6.2010. Therefore, his appeal stands abated. (4) Co-accused - Vijay Kumar had preferred a separate appeal being Criminal Appeal No. 267/90. The said appeal came up for hearing on 18.1.2006. Nobody represented the appellant on the said date. However, the Additional Public Prosecutor submitted a written communication to the effect that the appellant Vijay Kumar was already released on special remission on 18.12.2001 on the occasion of Guru Ghasidas Jayanti while undergoing the sentence in Central Jail.Raipur. (5) The facts, briefly stated, are as under:- On 21.11.87 at about 2.00 p.m., appellant Satya Prakash called deceased Ajay Sharma from his house. When Ajay Sharma came out, he was dragged by them to a nearby place, where he was assaulted by knife by accused Vijay Kumar. The allegations against the present appellants are that they caught hold of the deceased and facilitated co-accused Vijay Kumar to give knife blows to him and in this manner, they shared common intention with accused Vijay Kumar to commit murder of deceased Ajay Sharma. Deceased Ajay Sharma himself iodged the First Information Report (Ex.-P/17) on the same day at about 2.30 p.m. Thereafter he was taken to the hospital, where his dying declaration (Ex-P/6) was recorded by the Executive Magistrate at about 3.00 p.m. on 22.11.87. In the F.I.R. (Ex.-P/17) henamedco- accused Vijay Kumar and he also mentioned that the 3 other persons were holding him while the assault was being given by co- accused Vijay Kumar. However, in the dying declaration, he specifically took the names of the appellants and stated that they had caught him white accused Vijay Kumar was assaulting him by a knife. 1 ^ t Criminal Auoeal No. 55 of 1990 In the MLC report, Dr.(Smt.) Sarla Jaiswal (PW-7) found two stab injuries, one on the hypochondrium and other on right elbow joint of the deceased. The injuries were of the size of 1.5 cm x 0.2 cm and 1 cm x 0.5cm. The MLC report is Ex.-P/10. The deceased died in the hospital on 25.11.87 at about 4.40 a.m. The post- mortem examination was conducted by Dr. K.L. Gopawar (PW-11). On the external examination, he also noticed two stab wounds on the body of the deceased. On internal examination, he found that small intestine was repaired and blood clots were found on its membrane. There was also a laceration of 1 cm x 0.3 cm on the membrane of small intestine. Brown blood mixed secretion was found in abdominal cavity. The cause of death was shock and haemorrhage on account of injury sustained in the abdomen. The post-mortem report is Ex.-P/13. (6) There were 3 eye-witnesses of the incident namely Ku. Anupma (PW-2), Aatmanand (PW-6) & Dheluram (PW-8). Out of them, Aatmanand (PW-6) & Dheluram (PW-8) turned hostile and they did not support the case of the prosecution. (7) The learned Sessions Judge, believing the testimony of Ku. Anupma (PW-2) as also the contents of the dying declaration (Ex.-P/6) and the oral dying declaration made by the deceasedto Nathuram (PW- 1) and Ramkrishna (PW-3) held that all the accused persons were liable for punishment u/s 302/34 IPC as all of them shared common intention for commission of murder of deceased Ajay Sharma. (8) Mrs. Renu Kochar, learned counsel appearing on behalf of the appellants, argued that the Sessions Judge erred in law in holding that the appellants had shared common intention with co-accused Vijay Kumar and were liable for punishment with the aid of Section 34 IPC. She r'. ' 'K Criminal AOTeal No. 55 of 1990 also argued that it was a personal act of co-accused Vijay Kumar and nothing can be attributed to the appellants with the aid of Section 34 IPC. She further argued that even otherwise also, in the facts and circumstances of the case, an offence u/s 302/34 IPC would not be made out. (9) On the other hand, Mr. Akhil Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. (10) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (11) Section 34 is based on the principle ofjoint liability in the doing ofa criminal act. It does not constitute a substantive offence. 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 person who join in committing the crime. There may not be the direct proof of common intention but such intention can be inferred from the circumstances appearing from the proved facts and circumstances of each case. To constitute common intention, it is necessary that the intention of each one of the accused be known to the rest and shared by them. The common intention 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 forwhich they can be convicted. Criminal Appeal No. 55 of 1990 (12) In case on hand, the F.1.R. (Ex.-P/17) was lodged by the victim himself. It was the prompt F.1.R. lodged within half an hour ofthe incident. The victim mentioned in the F.1.R. that when Vijay Kumar was giving knife blows, the persons accompanying him were holding him. In the dying declaration (Ex.-P/6), which was recorded on 22.11.87, he furtherstated in answer to question No.6 that when he came out of his house, appellants Satya Prakash @ Lallu, Khedu and Dwarka caught hold ofhim and accused Vijay Kumar assaulted him by knife. The contents of the dying declaration have been supported by the evidence of Ku. Anupma (PW-2). She is the sister of the deceased. She stated that the appellants caught hold of the deceased and dragged him towards the temple and thereafter, the deceased was assaulted by a knife by Vijay Kumar. It also comes in her evidence that at the time of giving knife blows by the co- accused, these appellants were holding the deceased. The learned Sessions Judge has observed that when Vijay Kumar gave first knife blow to the deceased, the deceased obstructed and the blow hit onhis elbow. Had the appellants not shared common intention with co-accused Vijay Kumar, after the first blow, they would have tried to save the deceased and they would not have caught the deceased so as to facilitate the co-accused to give another blow, which, in fact, proved fatal. It is on all these proved facts and circumstances, the Sessions Judge held that the appellants were sharing common intention with co-accused Vijay Kumar. On due consideration of the entire evidence on record, we do not find any infirmity in the finding recorded by the Sessions Court that the appellants were sharing common intention with co-accused Vijay € '^ % %s^ 1 ^ ,^' ^ '''"'Saasi*'"' Criminal Appeal No. 55 of 1990 Kumar, who gave knife blows to the deceased and all would be liable for similar punishment with the aid of Section 34 IPC. (13) Now we shall considered the second argument advanced by Mrs. Renu Kochar. (14) According to the post-mortem report, the deceased received two injuries. One was on abdomen and the other was on elbow. The first was of the size of 1.5 cm x 0.2 cm and the second of the size of 1 cm x 0.5 cm. On the internal examination, it was found by the Autopsy Surgeon that the small intestine was repaired and blood clots were found on its membrane. This shows that there must have been some cut in the small intestine. There was alsoa laceration of 1 cm x 0.3 cm on the membrane of small intestine and brown blood mixed secretion was found in abdominal cavity. The injuries were caused on 21.11.87 at about 2.00 p.m., whereas, the deceased died in the hospital at 4.40 a.m. on 25.11.87 i.e. almost after4 days. The cause ofdeath was haemorrhage on account of injuries sustained in the abdomen. We note that no vital organs like liver, spleen etc., were damaged on account of injuries sustained by the deceased. It appears that the injury of knife which penetrated in the abdomen had just caused cut or perforation in the small intestine adjacent to upper layer of the abdominal cavity. The injury was repaired and the deceased survived for more than 4 days and died.on account haemorrhage. The Doctor has also not opined that the injuries, sustained by the deceased, were sufficient to cause his death in ordinary course of nature. The accused persons had caused only one serious injury on the abdomen of the deceased which unfortunately proved fatal. If really the ^"^ •?'s ^. t' Criminal Appeal No. 55_of 1990 intention of the accused persons was to cause death of the deceased, they would have inflicted more serious injuries. In these circumstances, it cannot be said that the accused persons had common intention to cause death of the deceased. However, the injuries inflicted would certainly show that they had knowledge that those injuries may be fatal and in which case, they would be liable for punishment u/s 304 Part-11 read with Section 34 IPC. (15) For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the appellants u/s 302/34 IPC are set-aside. Instead thereof, the appellants are convicted u/s 304 Part-11 read with Section 34 IPC and sentenced to the period already undergone by them which comes about 4 years in this matter. Sd/- Chief Justfce Sunil Kumar Sinha Judge vatti