-r\'l -'-?iA !S^ 'f-f^'^' HIGH COURT OF CHHATTISGARH.BILASPUR Division Bench: Hon'ble Shri Sunil Kumar Sinha &. Hon'ble ShriRadhe Shyana Sharina, J J Crimmal Appeal No. 144^fL1994 Naro-ttam Vs. State of Madhya Pradesh (Now State of Chhattisgarh) & (Connected Cr.A. No. 193 of 1994) JUDGMENT For consideration Sd/- SuniIKumarSinha Judge HON'BLE SHRI JUSTICE RADHE SHYAM SHARMA ^ ^3 Sd/- R.S.Sbarroa Judge -"»- Post for Judgment : ^ /09/2011 Sd/- ' 1: Suni! Kumar Sinha Judee HIGH COURT OF CHHATTISGARH. BILASPUR Division Bench: Hon'ble Shri Sunil Kuniar Sinha & Hon'ble ShrLRadhe Shyam Sharma. J J Criminal Appeal No. 144 of 1994 APPELLANT RESPONDENT Narottam son of Shri Ramji Sahu, aged about 21 years, resident of village KhUora, District Raipur Versus State of Madhya Pradesh (Now &tate of Chhattisgarh) And Crinrinal Aooeal No. 193 of 1994 APPELLANTS 1 Sheshu aliars Shesh Narayan S/d Isharilal Sahu, aged about 21 years, resident of Khurai, District Durg 2 Kumbhaj S/o Bhureram, aged about 27 years, P.S. Simga, Dista-ict Raipur Versus RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh) (Griminal ABB^^ uadei_Section^374 (21 of The Code of - / Criminal Procedure, 19731 -»*>. Apnearance: Mrs. Renii Kochar, Advocate for the appellants. Mr. Ravindra Agrawal, Panel Lawyer for the State. Criminal ApuealNos. 144/94 & 193/94 JUDGMENT (05.09.2011) Following judgment of the Court was deUvered by Sunil Kumar Sinha, J. (1) These appeals are directed against the judgment dated 28th •» ofJanuary, 1994 passed in Session Trial No. 230/90 by the First Additional Session Judge, Raipur. -By the unpugned judgment, all the appellants have been convicted u/s 394/397 IPC and appellant- Sheshu @ Shesh Narayan has been convicted u/s 302 IPC and other appellants have been convicted u/s 302/34 IPC and all have been senteisoed to und^rgo R.I. for 7 years and R.I. for life respectively. (2) The facts, briefly stated, are as under:- On 5.2.90, deceased- Tulsidas Meghani and his family members were traveling on a local train from Bhatapara to Raipur. The allegations are that 4 accused persons entered into the bogie and snatched some ornaments and Rs.120/- from the possession of the deceased and his family members. The further allegations are that after committing robbery, when they were trying to flee away, deceased- Tulsidas Meghani obsta^-icted appellant- Sheshu @ Shesh Narayan who fired from a desi-katta on the deceased which resulted in'to his death. The matter was report by a co- ./ passerjger in GRP, Raipur. During the course of * investigation, the accysed persons were taken into custody and they were pyt for identification on 23.2.90. AU the accysed persons were duly identified in the Test IdentiGcation Parade (T7TF.) by Timla (PW-1 - daughter of the deceased) and Ramchand Madhwani (PW-12 - a co- ^ - passenger). Tlie "T.I.P. was conducted by Executive Criminal Aroeal Nos. 144/94 & 193/94 Magistrate, Ashok Tiwari (PW-4). On discovery statement of appellant- Sheshu @ Shesh Narayan (Ex.-P/3), katta Se, cartridge were seized vide seizure memo Ex.-P/4; on discovery statement ofappeUant- Kumbhaj (Ex.-P/S), a knife was seized vide seizure memo Ex.-P/S; on discovery statement of appeUant- Narottam. (Ex.-P/6), a knife was seized at his instance vide seizure memo Ex.-P/ll; and on discovery statement of accused- Chain Singh (Ex.-P/7), another knife was seized at his instance vide seizure memo Ex.-P/S. Dr. D.C. Jain (PW-2) performed the Autopsy and gave post-mortem report Ex.-P/2 which proved the homicidal death of the deceased on account of gun-shot injury. (3) The leamed Session Judge, relying on the testimonies of Vimla (PW-1) and Ramchand (PW-12) held that the 3 appellants were duly identified by these witnesses in the T.I.P. and also in the Coi.irt, fherefore, it was prove'd that they participated in commission of robbery on the fateful day. It was also held that Sheshu @ Shesh Narayan had fired on the deceased by desi-katta, therefore, he was Uable'for punishment u/s 302 IPC, and since the ofher appellants shared common intention with Sheshu, they were also liable for punishment u/s 302 with the aid of Section 34 IPG.''Since evidence of identification of 4th accused i.e. Chain Singh was dpi.ibttal, he was acquitted of the charged framed agairist him. -">- (4) A report has been received froni Superintendent, Central Jail, Raipur that appellant Sheshu @ Shesh Narayan and .Kutnljhaj have already -been released on probation by the Criminal Amieal Nos. 144/94 & 193/94 appropriate Govemment on 14.10.97 8s 14.5.2001 by Special orders dated 25.9.97 and 1.5.2001. (5) Mrs. Renu Kochar, learned counsel appearing on behalf of the appellants has not disputed the involvement of the appellants in commission of ro'b'bery and their conviction u/s 394/397 IPC. She has also not disputed the cohviction of appellant Sheshu @ Shesh Narayan u/s 302 IPC. She only argued that in the prevailing facts and circunistances of the case, appellant- Narottam. and Kumbhaj cannot be held responsible for commission of raurder of the deceased with the aid of Section 34 IPC. (6) Mr. Ranndra Agrawal, learned Panel Lawyer appearmg on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. (7) We have heard the leamed counsel for the parties at length and have also perused the records ofthe sessions case. (8) The Session Judge has'mainly reTied on the testimonies of Vimla (PW-I^ and Ramchand Madhwani (PW-I2). Vimla is daughter ,of/the deceased and Ramchand was a co-passenger. Both have identifled the a''pfiellants during the course of the trial and they had also identified them in the Test Identification Parade CQnducted on 23.2.90 by Executive Magistrate, Ashok Tiwari (PW- 4) who prepared the T.I.P. memo (Ex.-P/l). CriminalATOealNos. 144/94 & 193/94 (9) So far as finding m relation to gun-shot injury caused by appeUant- Sheshu @ Shesh Narayan is concerned, that is also established by the evidence of Vunla (PW-1). She deposed that when the accused persons-were running after committing dacoity, accused/appeUant- Shesh Narayan fired on her father who received gun-shot injury. Ramchand Madhwani (PW-12) deposed that at the time of the incident, appellant- Sheshu @ Shesh Narayan was holding a katta. When fhe accused persons started snatehing articles of Shindhi famUy, the deceased caught accused- Sheshu @ Shesh Narayan, and at that time Shesh Narayan fired on the deceased by katta. (10) Mrs. Kochar has vehemently argued that appeUants- Narottam and Kumbhaj did not share any common intention with appellant- Sheghu @ Shesh Narayan for com.mission of murder of the deceased. His act was individual which he did when Iie was caught by the deceased while running away from the bogie of the train. Even these 2 appellants were not near Sheshu @ Shesh Narayan who was caught and who fired on the deceased, therefore, the conviction of these appeUants u/s 302 with the aid of'Section 34 IPC cannot be sustained. (11) .Sectkrn 34 IPC has been enacted on the prmciples ofjoint n»- 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 sec.tion is the element of participation in action. The _IJiability -of one person for'an offence conimitted by another in the \. ~~^. Criminal Appeal Nos. 144/94 & 193/94 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 com.raitting the crime. In order to bring hcan-e the charge of common intentton, 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 commit 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 fhe commission of the crime. If two or more persons intentionally do an act jointly, the position in law is just the same as if each of theni has done it mdividually by himself. (12) In case on hand, in appreciation, we find that the common intention of tbe assailants was to comrait robbery and not to commit raurder of the deceased. They comniitted robbery in the above manner and when they were trying to run away from the bogie, the deceased caaght appellant- Sheshu @ Shesh Narayan who was boldin^ the katta and who ultimately fired by katta on the deceased. The facts and circumstEinces of the case would show that there was no plan or meeting of mind of all the appellants to -commit nn^r^er of the deceased and even there is no evidence that theyrna.de if at the spur of'fiioment before the commission of the crime.It appears that when appellant- Sheshu @ Shesh Narayan was caught by the deceased, he fu-ed on the deceased to any how getrid from^ him so that he can also ftee away. We are of the view ~s ;' 1.' '^"s^'\ CrimmalAopealNos. 144/94 & 193/94 that in the above facts and circumstances of the case, 2 other appellants i.e. Kumbhaj and Narottam, cannot be held liable for punishment u/s 302 with the aid of Section 34 IPC. (13) For the foregoing reasons, the appeals are partly allowed. The conviction and sentences awarded to the appellants u/s 394/397 IPC are maintained. The conviction and sentence awarded to appeUant- Sheshu @ Shesh Narayan u/s 302 IPC is also raaintained. However the conviction and sentences awarded to appellants- Kumbhaj and Narottam u/s 302/34 IPC are set- aside and they are acquitted of the above charges framed against them. . (14) As we have already stated, the 2 appellants i.e. Sheshu @ Shesh Narayan and Kumbhaji h'ave been released on probation. The 3rd appellant- Narottam. was taken into custody on 25.2.90. He was throughout in jail during the trial and was released on baU by order of the Appellate Court on 10.5.2002. Therefore, he has already undergone the punishment u/s 394/397 IPC which we have maintained, and thus, he is not required to surrender in this metfter. His bail bonds are cancelled and surety stands .discharged. / Sd/- SunilKumar Sinha Judge -»>>. Sd/- R.S. Siiamfa Judge vatti '."s.:.