Kharora, District Raipur (C.G.) v. State of Chhattisgarh Through
Case Details
HIGH COURT OF CHHATTISGARH. BILASPUR Division Bench: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri R.N. Chandrakar. J J Criminal Appeal No. 361 of 2007 APPELLANT about Pramod Kumar Sonu @ Vaishnav, S/o Paltan Vaishnav, 20 Years, R/o Aged Santhoshi Nagar, Near Durga Mandir, Thana Tikrapara, Raipur, District- Raipur (C.G.) Versus ;^ RESPONDENT State of Chhattisgarh Through: Police Tikrapara, District Raipur (C.G.) Station- Criminal Appeal No. 641 of 2007 APPELLANT RESPONDENT Sunil Nishad, S/o. Shri Dinesh Nisad, Aged 18 Years, R/o. Bhaisa Khapri, Police Station: Kharora, District Raipur (C.G.) Versus State of Chhattisgarh Through: Police Tikrapara, District Raipur (C.G.) Station- And Criminal Appeal No. 777 of 2007 ^ APPELLANT Shrivas as Shrivastava as Shrivastava Nilesh (Wrongly mentioned in impugned judgment and order) S/o. Rudranath Shrivas (Wrongly mentioned in impugned judgment and order), Aged about 18 Years, Village: Mohrapali, P.S. & Distt. Khariyar Road Present R/o. Kamta Ka Makan, Santoshi Nagar,, Police Station: Tikrapara, District Raipur (C.G.) Versus (Orissa), Netam RESPONDENT Stateof Chhattisgarh Through: Police Tikrapara, District Raipur (C.G.) Station- (Criminal Appeals under Section 374 (2} of The Code of Criminal Procedure. 19731 Cr.A. No. 361/2007: Cr.A. No. 641/2007 & Cr.A. No. 777/2007 Appearance:
Legal Reasoning
sustained. We are of the view that the learned Sessions Judge was fully justified in holding that it was proved on the evidence of these witnesses that the appellants had participated in assaulting the deceased in the above manner. ^- c. Cr.A. No. 361/2007: Cr.A. No. 641/2007 & Cr.A. No. 777/2007 (10) Now we shall consider the argument relating to a lesser offence made out. (11) Admittedly, single knife blow was given to the deceased on his abdominal region by Sunil Nisad (A-1). Dr. A.P. Padraha (PW-17) had examined the deceased on 9.4.2006 and found that stab injury to the abdomen had gone deep to the abdominal cavity and omentum was coming out. However no internal injury was found on any internal organ. The deceased was admitted in the hospital for more than 1 & ^ months and he died on 26.5.2006 i.e. almost on 48 day of the incident. The Autopsy Surgeon, Dr. Shiv Narayan Manjhi (PW-14), had also not found any internal injury in the dead body of the deceased. None of the internal organs of the deceased was damaged on account of the injury. However, he noticed that thick fluids were accumulated in the stomach and abdomen and outer & inner portion of the skin and muscles were highly --/ t _.lp' infected and the cause of death was cardio respiratory arrest on account of infected wounds on the abdominal region and their complications. Therefore, the death was not a direct result of the injuries inflicted to the deceased. (12) In Harish Kumar-Vs- State fDelhi Administration). AIR 1993 SC 973, the appellant was cOnvicted u/s 302 IPC. It was established that the appellant alone had inflicted the injury which caused the death but the deceased died 2 days after infliction of the injury. The Supreme Court, after considering the entire facts and circumstances of the case and taking note of the nature of the injuries as also the time gap between the time of infliction of the injury till the death which was two days after the injury was inflicted and further that there was no sufficient material as to Cr.A. No. 361/2007; Cr.A. No. 641/2007 & Cr.A. No. 777/2007 the nature of the treatment given to the deceased during those two days, set-aside the conviction u/s 302 IPCand convicted the appellant u/s 304 Part-11 IPC. (13) In Babu Lal and others -Vs- State of Madhva Pradesh. AIR 1993 SC 1941, three accused persons came together armed with sharp- edged weapons and inflicted injuries which resulted in the fracture of the skull bone. The fracture of the tibia, fracture of the metacarpal bone and some other injuries were also caused. The deceased died six days later to the incident. The Supreme Court held that in the facts and circumstances of the case, it cannot be said that the accused persons had a common intention for causing the death. But they must be attributed that by inflicting such injuries they were likely to cause the death of the deceased, in which case the offence will amount only to culpable homicide and not murder. The Supreme Court, therefore, set- aside the conviction u/s 302/34 IPC and convicted the appellant u/s 304 Part-11/34 IPC and sentenced each ofthem to 5 years imprisonment. (14) In case on hand, as we have already said, single blow was inflicted by the knife by appellant- Sunil Nisad (A-1). The knife had pierced into abdomen, however, none of the internal organs were damaged and the deceased had died on 48 day of the incident during the course of his treatment. We note that the prosecution had not filed bed-head-ticket to show that what treatment was given to the deceased and how the injury inflicted by the appellant (A-1) had became infected which infection was likely to cause death of the deceased. We are of the view that in the above facts and circumstances ofthe case, an offence u/s 302 IPC would not made out even against Sunil Nisad (A-1). G ^. Cr.A. No. 361/2007: Cr.A. No. 641/2007 & Cr.A. No. 777/2007 (15) Now we shall examine the case of appellants- Sonu @ Pramod Kumar Vaishnav (A-2) and Nilesh Srivas (A-3) who have been convicted with the aid of Section 34 IPC. (16) Section 34 has been enacted on the principle ofjoint 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, 4 the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons tocommit the offence for which they are charged with the aid of Section 34, be it prearranged oron the spur ofthe moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the 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 several persons charged with commission of an offence jointly must be thesame or identically similar. The acts may be different in character, but must have been Cr.A. No. 361/2007: Cr.A. No. 641/2007 & Cr.A. No. 777/2007 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] 5 SCC 679. The Apex 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'f and before the word "each", so as to make the object of section 34 clear. 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 furiiherance 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 between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. (17) It was further held by the Apex court in the matter of Dani Sinah - Vs- State of Bihar. 2005 SCC (Cri) 127 fpara 20) that to constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them. Undoubtedly, it is difficult to prove 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 prosecutionmust lead evidence of facts, circumstances and conduct of the accused from which their ^ Cr.A. No. 361/2007; Cr.A. No. 641/2007 & Cr.A. No. 777/2007 10 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 whetherthe 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. (18) In case on hand, though there is evidence that the above two V. appellants (A-2 and A-3) were also present at the place of occurrence, but the two eye-witnesses have deposed that firstly appellant- Sunil Nisad (A-1) met them and he started altercation with the deceased. It would further appear by their evidence that after the altercation with the deceased, the three appellants/accused started assaulting the deceased by hands and fists, and then, appellant- Sunil Nisad (A-1) took out a knife and gave a knife blow to the deceased. Thus, there is no evidence to show that appellants - Sonu @ Pramod Kumar Vaishnav (A-2) and Nilesh Srivas (A-3) were having knowledge that A-1 was carrying a knife. This is a case in which during the quarrel A-1 took out the knife at once and assaulted the deceased. Therefore, there is no evidence to show that the two appellants (A-2 and A-3) had shared common intention with appellant- Sunil (A-1) either to commit murder of the deceased or to assault the deceased by the knife. We are of the view that in theabove facts and circumstances of the case, Sonu @ Pramod Kumar Vaishnav (A-2) and Nilesh Srivas (A-3) cannot be convicted with the aid of Section ^ 11 Cr.A. No. 361/2007: Cr.A. No. 641/2007 & Cr.A. No. 777/2007 34 IPC and every one would be liable for conviction for his individual act committed by him. (19) We have already held that Sunil Nisad (A-1) was not liable for conviction u/s 302 IPC and his act of inflicting single injury to the deceased by knife resulting into his death on 48th day on account of infection and complications arising out of the said injury would make him " liable for punishment u/s 304 Part-11 IPC. So far as the other two appellants (A-2 and A-3) are concerned, there is evidence that they had assaulted the deceased by hands and fists. They were unarmed. Therefore, they would also be liable to be punished u/s 323 IPC.
Arguments
Mr. Arun Kochar, Advocate for the appellant in Cr. A. No. 361/2007. Mr. C.K. Sahu, Advocate forthe appellant in Cr.A. No. 641/2007. Ms. Sunita Jain, Advocate forthe appellant in Cr. A. No. 777/2007. Mr. Rajendra Tripathi, Panel Lawyer for the State in all the appeals. JUDGMENT (06.03.2013) Following judgment of the Court was dictated on Board by Sunil Kumar Sinha. J. .i^ (1) These appeals are directed against the judgment dated 7th of April, ^? ^.- 2007 passed in Sessions Trial No. 260/2006 by the 8th Additional Sessions Judge (FTC), Raipur (C.G.). By the impugned judgment, Appellant- Sunil Nisad (A-1) has been convicted u/s 302 IPC and the other two appellants i.e. Sonu @ Pramod Kumar Vaishnav (A-2) and Nilesh Srivas (A-3) have been convicted u/ss 302/34 IPC andall have been sentenced to undergo imprisonment for life and to pay fine of ?500/- with default sentence of R.l. for 3 months. (2) The facts, briefly stated, are as under:- 2.1 Deceased- Shivkumar was in love with the sister of Sonu @ Pramod Kumar Vaishnav (A-2). The two brothers of girl namely- Sonu @ Pramod Kumar Vaishnav (A-2) and Sunil Vaishnav (a juvenile offender) were unhappy with the alleged relations. On 9.4.2006, deceased had gone to the house of his brother-in-law (jija) namely Choturam (PW-2). He was accompanied by Lokash Prasad Sahu (PW-3) and Sheikh Kadir (PW-4). The allegations are that when they were coming in the night, at about 8.30 p.m., three accused and a juvenile offender stopped them in the way. All the accused (A-1 to A-3) caught the deceased and started assaulting him by hands and fists and appellant- Sunil Nisad (A-1) took out a knife and gave one knife blow to the abdomen of the deceased. The deceased was taken to the hospital and was examined by Dr. A.P. Padraha (PW-17). He found that the deceased had sustained Cr.A. No. 361/2007; Cr.A. No. 641/2007 & Cr.A. No. 777/2007 one stab wound of 4.5 x 1 cm on the left sub-costal region. It was peritoneum deep and omentum was coming out from the injury. Apart from that there were 2-3 abrasions and a superficial lacerated wound. The MLC report of the deceased is Ex.-P/18. The deceased was admitted in the hospital, where he died during the course of treatment on 26.5.2006. The matter was already reported to the police and an offence u/s 307/34 IPC was registered against the accused persons vide dehatinalishi (Ex.-P/2) and F.1. R. (Ex.- P/10). Information of death of the deceased was sent to the police Inquest was and merg intimation (Ex.-P/9) was registered. prepared and the dead body was sent for postmortem. The post- mortem examination was conducted by Dr. Shiv Narayan Manjhi (PW-14). He also found the above external internal examination, he found that the injuries sustained earlier were infected and about 250 milliliter of yellowish green fluid was present in the abdominal cavity. About 100 milliliter of thick liquid was also found in the stomach and theinternal membrane was injuries. However, on reddish. Discoloration of blackish brown colour in the area of 4 x 2 cm around gallbladder was also found in the liver. The Autopsy Surgeon opined that the above infected injuries were sufficient to cause death in ordinary course of nature and the cause of death was cardio respiratory failure as a result of infected wounds on the abdominal region and their complications. The postmortem report is EX.-P/17. -.^ t 2.2 There were three eye-witnesses to the incident namely- Choturam (PW-2), Lokash Prasad Sahu (PW-3) and SheikhKadir (PW-4). The Sessions Judge relied on the testimonies of these witnesses and held that it was proved that Sunil Nisad (A-1) had inflicted knife injury to the deceased, therefore, he was liable for punishment u/s 302 IPC and the other to appellants- Sonu @ Pramod Kumar Vaishnav (A-2) and Nilesh Srivas (A-3) had shared common intention with him, therefore, they were also liable for punishment u/ss 302/34 IPC. The appellants (A1 to A-3), were convicted and sentencedas above. Hence this appeal. thus, € Cr.A. No. 361/2007: Cr.A. No. 641/2007 & Cr.A. No. 777/2007 (3) Counsel for the appellants have argued that the eye-witnesses were not reliable; they have given unnatural versions; their presence at the place of occurrence is doubtful. Alternatively, they haveargued that appellant- Sunil Nisad (A-1) was having no intention to commit murder of the deceased; he inflicted single blow by knife to the deceased, which though had penetrated to the abdomen, but no internal injury was caused. The death was on account of various infections; the death had occurred after 48 days; therefore, an offence u/s 302 IPC would not be made out against him and he would be liable for punishment under some lesser Section preferably Part-1 or Part-11 of Section 304 IPC. About two other appellants- Sonu @ Pramod Kumar Vaishnav (A-2) and Nilesh Srivas (A-3), they argued that there is hardly any evidence to show that they had shared common intention with A-1 either to inflict the alleged injury to the deceased or to cause his death, therefore, conviction of these appellant (A-2 and A-3) with the aid of Section 34 IPC cannot be sustained. (4) On the other hand, Mr. Rajendra Tripathi, Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard counsel for the parties. (6) Choturam (PW-2) has deposed that on the fateful day at about 8.30 p.m. when they were returning to Santoshi Nagar, the accused persons met them on the way near the house of Councilor, Sanjay Chakradhari. They started assaulting the deceased. Appellant Nishad (A-1) had assaulted the deceased by a knife and the other two appellants (A-2 and A-3) had caught his hands. € € Cr.A. No. 361/2007: Cr.A. No. 641/2007 & Cr.A. No. 777/2007 (7) Lokash Prasad Sahu (PW-3) is an other eye-witness. He also deposed in similar fashion. He deposed that Sunil Nisad (A-1) came near the house of Councilor and started abusing the deceased. He was saying that "^T ^TRT ^7Tft^TT^yTFT^TTR ^TT". Shivkumar (deceased) said that '1TTN ^ t^IT". Thereafter, the appellants (A-1 to A-3) caught the deceased and Sunil Nisad (A-1 ) assaulted the deceased by a knife. (8) Sheikh Kadir (PW-4), the third eye-witness, deposed that Sunil Nisad (A-1) met them near the house of the Councilor. He had threatened the deceased on which the deceased gave reply to him, thereafter, Sonu (A-2), Nilesh (A-3) and Sunil Vaishnav (juvenile) caught the deceased and Sunil Nisad (A-1) assaulted him by a knife. (9) These witnesses were cross-examined at length by the defence, but nothing material could be broughtin their cross-examination, so far as involvement of the appellants is concerned. Their evidence is fully intact on the point that when they were going along with the deceased, the appellants and the juvenile met them on the way, they caught the deceased and thereafter the deceased was assaulted by the appellant- Sunil Nisad (A-1) who gave a knife blow to him on his abdominal region. Therefore, involvement of the appellants was fully established by the evidence of these witnesses and argument advanced by counsel for the appellants that their evidence was shaky and unreliable cannot be
Decision
(20) For the foregoing reasons, the appeals are partly allowed. The conviction and sentences awarded to the appellants u/ss 302 and 302/34 IPC are set-aside. Instead thereof, appellant- Sunil Nishad (A-1) is convicted u/s 304 Part-11 IPC and sentenced to the period already undergone which comes about 7 years. He is in jail, he shall be released forthwith, if not required in any other case. (21) Appellants- Sonu @ Pramod Kumar Vaishnav (A-2) and Nilesh Srivas (A-3) are convicted u/s 323 IPC and sentenced to undergone R.I. for 1 year. It is stated that appellant- Nilesh Srivas (A-3) has already undergone for 2 years, 2 months and 15 days and he is on bail. His bail bonds shall continue for a period of 6 months in view of Section 437-A Cr.P.C. Appellant- Sonu @ Pramod Kumar Vaishnav (A-2) is in jail since 10.4.2006. He shall also be released forthwith, if not required in any other case. Sd/- Sunil Kumar Sinha Judge vatti Sd/- R.N. Chandrakar Judge