The FIR is not an encyclopedia but can be used for corroborating the maker of the report – Jharkhand high court

 Criminal AppealNo. 5014 Criminal AppealNo. 2513 Criminal AppealNo. 5913 Against the judgment of conviction and order of sentence dated 15.03.2013 passed in S. T. No. 210 by Sri Satyendra Kumar Singh Sessions Judge Dhanbad. Sapan Hadi Gujra Dome 1.Santosh Hadi 2Manoj Hadi Versus The State of Jharkhand … … Appellant in Cr. AppealNo. 507 2014) … … Appellant in Cr. AppealNo. 252 2013) … … Appellant in Cr. AppealNo. 595 2013) … … Respondent Mr. Peeyush Krishna Choudhary Advocate Mr. Kalyan Banerjee Advocate Ms. Shruti Shrestha Amicus Curiae Mrs. Nehala Sharmin A.P.P. For the Appellants For the Respondent HON BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE SANJAY PRASAD Present: Pronounced on 03.02.2022 C.A.V. on 03.01.2022 Heard Mr. Peeyush Krishna Choudhary learned counsel for the appellant in Cr. Appeal No. 507 of 2014 Mr. Kalyan Banerjee learned counsel for the appellant in Cr. AppealNo. 2513 and Ms. Shruti Shrestha learned Amicus Curiae in Cr. AppealNo. 595 of 2013 and Mrs. Nehala Sharmin learned A.P.P. for the State in all the These appeals are directed against the judgment and order of conviction and sentence dated 15.03.2013 passed by Sri Satyendra Kumar Singh learned Sessions Judge Dhanbad in S. T. No. 210 whereby and whereunder the appellants have been convicted for the charge under Section 302 34 of I.P.C. and all of them have been sentenced to undergo 2 imprisonment for life with a fine of Rs. 2 000 for the offence under Section 302 34 of I.P.C. and in default of payment of fine they have been directed to undergo simple imprisonment for six months each. It has been alleged that the informant was sleeping along with her husband and children when at about 1 1:30 A.M. somebody knocked at the door. When her husband enquired as to their identity the accused persons broke the door and forcibly entered into the room. The informant could identify the accused who are the present appellants. All the accused persons had thrashed her husband to the ground and started assaulting him while Sapan HadiNo. 507 of 2014) had stabbed him on his chest with a knife. When he started raising alarm all the accused persons fled away. After some time her husband succumbed to his injuries. The reason for the occurrence is that about one and half months back appellant Santosh Hadi had enticed away the daughter of the informant namely Khusboo Kumari and kept her in the house of Manoj HadiP. S. Case 3 framed against Santosh Hadi Manoj Hadi and Gujra Dome for the offence under Section 302 34 I.P.C. and against Sapan Hadi for the offence under Section 302 I.P.C. which was explained to them to which they pleaded not guilty and claimed to be tried. The prosecution in support of its case has examined as many as 8 prosecution. P.W. 1 Raj Kumar Chouhan has stated that he had gone to the house of Binod Dome on hearing the cry of alarm where he saw Binod Dome having been murdered. This witness was declared hostile by the P.W. 2 Dr. Vinit Pd. Tigga was posted as a Tutor in the department of FMT PMC Dhanbad on 14.07.2009 on which date he had conducted autopsy on the dead body of Binod Dome and had found the following ante mortem injuries: Stabbed 1 ½” x 1” x cavity deep on left side of manubrium between the 2nd and 3rd costal cartrileges with one edge blunt and other edge sharp margin found sharp and inverted and blood clots all over. 1” x ½ “ x muscle deep over front of left thigh one edge blunt and other edge sharp and margin sharp. No other external wound found. The cause of death was opined to be haemorrhage and shock as a result of stab wound caused by penetrating weapon with one edge sharp and other bluntNo. 5014 that the appellant has been implicated only on account of the fact that he had enticed away and solemnized marriage with the daughter of the informant namely Khusboo KumariNo. 2513 has submitted that the appellant had been convicted primarily on account of his purported presence at the scene of the crime. Learned counsel submits that there are vital contradictions with respect to the role essayed by the appellant as could be culled out on a dissection of the evidences of P.W. 5 and P.W. 6. According to the P.W. 5 the appellant was merely present along with other accused persons though P.W. 6 has stated about the appellant threatening them with a Bhujali. Mr. Banerjee submits that mere standing at the place of occurrence would not invite invocation of Section 34 I.P.C. He adds that the appellant could also have actively participated in the commission of assault had there been a meeting of minds with the other accused persons. 9. Mrs. Shruti Shrestha learned Amicus Curiae appearing for the appellants in Cr. Appeal No. 595 of 2013 apart from adopting the arguments advanced by Mr. Kalyan Banerjee has stated that the case of Manoj Hadiis similar to that of Gujra Dome and assistance has been provided by the other appellants. We are therefore firstly considering the case of the appellant Sapan Hadi. The criminal law was set into motion by Jira Devidue to an incident which had taken place in the dead of night of 14.07.2009 when the appellants had forcibly entered into the house of the informant by breaking upon the door and committing the murder of her husband Binod Dome. The informant has clearly stated that it was Sapan Hadi who had stabbed Binod Dome with a Bhujali in his chest. The only eye witnesses to the occurrence are the informant and her children who were present inside the house when the occurrence had taken place in the house. However the prosecution has examined only P.W. 5 and 6 who have witnessed the occurrence. P.W. 5 has stuck to her narration made in the FIR that it was the appellant Sapan Hadi who had stabbed her husband with a Bhujali on his chest. P.W. 6 Khusboo Kumari who is the daughter of the deceased and who was subjected to enticement by 8 the appellant Sapan Hadi had also supported the role played by Sapan Hadi. The manner of assault attributed to the accused Sapan Hadi seems to have been corroborated by the Post Mortem report wherein the cause of death was opined to be on account of shock and haemorrhage as a result of stabbed wound caused by penetrating weapon with one edge sharp and the other blunt. The prosecution has also been able to establish the motive which can be singularly attributed to the appellant Sapan Hadi for committing such a dastardly act. P.W. 6 Khusboo Kumari has stated about her solemnization of marriage with the appellant Sapan Hadi and due to the torture meted out to her she had come back to her parents’ house. The marriage was solemnized according to her against the wishes of the deceased. As per P.W. 5 her daughter had come back about a week prior to the incident. According to P.W. 6 the appellant had come to her house about two days back and had threatened the deceased of dire consequences if she was not sent back to the house of Sapan Hadi. The role of the appellant Sapan Hadi in the murder of Binod Dome is thus clearly proved beyond any reasonable doubt and therefore the judgment and order of conviction and sentence passed against him is hereby affirmed. 15. We now venture out to consider the case of the appellants in Cr. AppealNo. 2513 and Cr. AppealNo. 5913. These appellants have been convicted under Sections 302 I.P.C. taking the aid of Section 34 I.P.C. The scope and object of Section 34 I.P.C. has recently been considered by the Hon’ble Supreme Court in the case of “Jasdeep Singh @ Jassu Vs. State of Punjab” reported inSCC Online 20 and the relevant paragraphs for the purpose of this case are quoted 21. “Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one into others in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial concrete definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved the remaining part will have to be examined with adequate care and caution as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence. 9 there are exceptions What is required is the proof of common intention. Thus there may be an offence without common intention in which case Section 34 IPC does not get attracted. 24. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for a concrete evidence as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense. 25. Normally in an offense committed physically the presence of an accused charged under Section 34 IPC is required especially in a case where the act attributed to the accused is one of instigation exhortation. However particular when an offense consists of diverse acts done at different times and places. Therefore it has to be seen on a case to case basis. 26. The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus it has to be construed as an advancement or promotion. 27. There may be cases where all acts in general would not come under the purview of Section 34 IPC but only those done in intention having adequate furtherance of connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist encourage promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. 28. The existence of common intention is obviously the duty of the prosecution to prove. However a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime may actually withdraw from it later. Of course this is also one of the facts for the consideration of the court. Further the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime without dissuading themselves or others might well be a relevant circumstance provided a prior common intention is duly proved. Once again this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the 10 It is to be seen therefore as to whether a common intention was shared by each of the appellants with the exception of the appellant Sapan Hadi in finalizing the act of murder. It is no doubt true that the presence of these appellants along with Sapan Hadi in the house of the appellant has been well established by virtue of the evidences of P.W. 5 and P.W. 6. Whether mere presence in the scene of murder would attract Section 34 I.P.C. or not is to be considered herein. 17. Motive as noted above has been clearly established so far as the appellant Sapan Hadi is concerned. He had an intention to cause bodily harm to Binod Dome for the reasons which are obvious but the rest of the appellants do not seem to share the same platform with Sapan Hadi. In the FIR the informant had stated that all the four appellants had forcibly entered inside the room threw her husband to the ground started assaulting him and Sapan Hadi had knifed her husband in his chest. The informant had come out and raised alarm at which the accused persons had fled away. Nothing has been indicated in the FIR regarding the presence of weapons in the hands of the appellants barring Sapan Hadi. The FIR is not an encyclopedia but can be used for corroborating the maker of the report. In her evidence as P.W. 5 the informant has substantially shifted from her earlier stance regarding the role played by each of the appellants and the weapon of assault they had in their possession. She as P.W. 5 does not speak of any assault except the assault committed by Sapan Hadi. She was pinned to the wall by the appellant Santosh Hadi while the appellant Manoj Hadi had threatened the children with a knife to remain silent and appellant Gujra Dome was standing at the door. P.W. 5 has also stated that she could not raise any alarm but after the accused persons had fled away she and the children started shouting. P.W. 6 has stated about the appellant Manoj Hadi and Gujra Dome threatening them with Bhujali while Santosh Hadi pinned her mother to the wall with a Bhujali. Thus there appears to be contradictions in the evidences of P.W. 5 & 6 so far as the role played by the appellants Manoj Hadi and Gujra Dome are concerned. A common intention can be derived from a pre meeting of minds or it can develop at the spur of the moment depending upon the ambience when the incident is taking place. Whether all the accused are sharing a common intention 11 or not can be assessed from the evidence of the witnesses. At the same time motive can also act as a catalyst for the accused in sharing a common platform. In the present case the presence of all the appellants in the scene of the crime is an indisputable fact. Similarly the motive of committing the offence singularly rests with the appellant Sapan Hadi though certain acts have been attributed to the appellants Santosh Hadi Manoj Hadi and Gujra Dome but the said acts do not unequivocally indicate the presence of a common intention amongst each of them. Though this court is conscious of the fact that all the accused persons had assembled at the dead of night but it has also to be borne in mind that the wife of Sapan Hadi namely Khusboo Kumari had left Sapan Hadi and had come back to her parents’ house about a week back which had infuriated Sapan Hadi and the motive was therefore existing. Moreover as stated earlier P.W. 5 and 6 have not attributed any act of assault to the appellants Santosh Hadi Manoj Hadi and Gujra Dome. In fact the post mortem report also does not indicate any other external injuries except what has been inflicted by the appellant Sapan Hadi. 19. We therefore come to the conclusion that so far as the appellant in Cr. AppealNo. 2513 and Cr. AppealNo. 5913 are concerned the learned trial court had committed an error of law while convicting the said appellants for the offence under Section 302 34 I.P.C. and sentencing them accordingly. 20. However so far as the appellant Sapan Hadi in Cr. Appeal No. DB) No. 5014 is concerned the learned trial court was justified in convicting him for the offence under Sections 302 34 I.P.C. and sentencing him to undergo imprisonment for life with a fine of Rs. 2 000 . 21. We accordingly dismiss Cr. Appeal No. 507 of 2014 while setting aside the judgment and order of conviction and sentence dated 15.03.2013 passed by Sri Satyendra Kumar Singh Sessions Judge Dhanbad in S. T. No. 22 of 2010 so far as the appellants in Cr. Appeal DB) No. 2513 and Cr. AppealNo. 5913 are concerned. Since the appellants in Cr. AppealNo. 2513 and Cr. Appeal 12 of their bail bonds. DB) No. 5913 are on bail they are discharged from the liabilities 22. All these appeals are accordingly disposed of. Pending I.A.s if any stands disposed of. Rongon Mukhopadhyay J.) Sanjay Prasad J.) Jharkhand High Court at Ranchi The 3rd day of February 2022 R.Shekhar NAFR Cp.3 

Summary: The FIR is not an encyclopedia but can be used for corroborating the maker of the report – Jharkhand high court The criminal appeals are directed against the judgment and order of conviction and sentence passed by learned sessions judge S. T. No. 22 of 2010 in which the appellants were convicted for the charge under Section 302/34 of I.P.C. the present appeals are opposing the order of conviction on the ground that there was an error in passing the judgment by a lower court. The present appeals were heard by a two-judge bench of HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY and HON’BLE MR. JUSTICE SANJAY PRASAD in Sapan Hadi(in Cr. Appeal (DB) No. 507/2014), Gujra Dome(in Cr. Appeal (DB) No. 252/2013), Santosh Hadi(in Cr. Appeal (DB) No. 595/2013) versus The State of Jharkhand The facts of the case are that the three appellants have been convicted for the offenses under Section 302/34 of I.P.C in which the sapan hadi stabbed the informant in the chest and Santosh hadi enticed away from the daughter of the informant and kept her in the house and all appellants have been together convicted for the murder of the informant and based on these activities the charge sheet was filed against the appellants and the sessions judge convicted them of above-mentioned offenses based on the examination of witnesses and the basis of the evidence presented. The statements of appellants were also recorded under section 313 of C.R.P.C. The learned counsel appearing on behalf of the appellant in Cr. Appeal (DB) No. 507 of 2014 submits that the appellant was implicated only on the fact that he had enticed away and solemnized marriage with the daughter of the informant. The counsel further submits that the witnesses in the case are interested parties and reliance cannot be put on their evidence and no independent witness has been testified in the case. The learned counsel appearing on behalf of the appellant in Cr. Appeal (DB) No. 252 of 2013 submits that the appellant has been convicted only for his presence at the crime scene and further there are major contradictions in evidence testimonies. the counsel further submits that mere standing at the place of occurrence would not invite invocation of Section 34 I.P.C and the appellant could have been involved in it if there has been a meeting of minds with the other accused persons. The amicus curiae appearing for the appellants in Cr. Appeal (DB) No. 595 of 2013 submits that the witness has divested in his statement than written in the FIR as stated in her evidence. The learned A.P.P appearing on behalf of the respondents submits that the evidence is cogent, categorical, and clear and states the role of each appellant in the commission of the offense and the acts the appellants would come within the purview of Section 34 I.P.C. The court after hearing the arguments decides that the role of appellant Sapan Hadi in the murder of the informant is proved beyond reasonable doubt and the sentence passed against him is affirmed. as for the other appellants to decide the motive and application of section 34 I.P.C, the court relied on the case of “Jasdeep Singh @ Jassu Vs. the State of Punjab” reported in (2022) SCC Online 20 and it was decided the other appellants does not have the same intent as sapan hadi and this can be confirmed from the FIR in the case and the evidence presented and hence it can be said that all appellants do not have the same motive. The court from the above-mentioned findings decides that the appellant in Cr. Appeal (DB) No. 252 of 2013 and Cr. Appeal (DB) No. 595 of 2013 finds that the learned trial court had committed an error of law while convicting the said appellants for the offense under Section 302/34 I.P.C. and sentenced them accordingly and as for Sapan Hadi in Cr. Appeal No. (DB) No. 507 of 2014 is concerned, the learned trial court was justified in convicting him for the offense under Sections 302/34 I.P.C . hence the appeals are allowed and disposed of. Click here to read the Judgment