Research › Search › Judgment

Chhattisgarh High Court · body

2009 DIGILAW 99 (CHH)

BHARAT LAL v. STATE OF C. G.

2009-03-17

D.R.DESHMUKH, DHIRENDRA MISHRA

body2009
JUDGMENT As per Hon'ble Shri D. R. Deshmukh, J. :- 1. This criminal appeal is directed against the judgment dated 7-5-2004 in Sessions Trial No.274/2003 by the Additional Sessions Judge, Sakti, District Bilaspur, whereby the appellant was convicted under Section 302 read with Section 34 of the Indian Penal Code for committing murder of one Ramcharan on 8-102002 at about 5 P.M. in Village Bodsera near the canal adjacent to the field of Agardas in furtherance of common intention shared with the absconding accused Rajendra and sentenced to imprisonment for life and to fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for 3 months. 2. It is not in dispute that Rajendra alias Ram Kumar, who is alleged to have hacked Ramcharan by a sharp edged weapon to wit Gandasa was declared absconding under Section 299 of the Code of Criminal Procedure and did not face trial. Another co-accused Ratan was tried by the Juvenile Court. Co-accused Narayan, Khuburam, Ajuram, Ramprasad, Ramesh Kumar, Sukhram, Mohanlal, Dineshram, Tijuram, Puniram were acquitted of the charges under Sections 120B, 148 and 302 read with Section 149 of the Indian Penal Code while the appellant was also acquitted of the charges under Sections 120B and 148 of the Indian Penal Code. 3. Briefly stated prosecution story is that on 8-10-2002 at 5 P.M. in Village Bodsera near the canal adjacent to the field of Agardas, the appellant and Rajendra alias Ram Kumar had, in furtherance of their common intention to commit murder of Ramcharan, assaulted him with Danda and Gandasa respectively. Panchram Satnami, P. W.-21, an eye-witness stated before the trial Judge that the appellant Bharat Lal had assaulted Ramcharan by Danda on the back of head due to which Ramcharan fell on the ground. He further deposed that both the appellant and Rajendra had committed the murder of Ram char an. Sehtaru Satnami, P. W.-20, an eye-witness also deposed that he saw the appellant inflicting a blow with a Danda on the back of head of Ram char an due to which Ramcharan fell. There was no material on record to show that any other injury was caused by the appellant on Ramcharan. The post mortem examination of Ram char an by Dr. K.L. Uraon, P. W. -12 revealed that he had sustained fractures of the parieto-occipital and temporal bone. There was no material on record to show that any other injury was caused by the appellant on Ramcharan. The post mortem examination of Ram char an by Dr. K.L. Uraon, P. W. -12 revealed that he had sustained fractures of the parieto-occipital and temporal bone. He found the following injuries on the body of Ram char an : (1) One big incised wound on Lt. side offace along with head not identifiable extending from the left occipital region of scalp to left side of the face. Over injured part of the skin muscles were missing out. Only bone ofleft side offace was visible with fractured cut. Left of occipito-parietal & temporal bone of scalp were missing, brain matter came out. Margins were regular & slight blood clot was present. Injury was ante mortem in nature. (2) One incised wound middle site of Rt. Ear to Rt. site of the neck, obliquely placed, size - 3W' x 1 W' xl W'. Margins were regular. Skin muscles, vessels & nerves were cut, clotted blood was present. Reddish brown in colour. Injury was ante mortem in nature. (3) One incised wound, posterior & base of the neck, place horizontally, size 3 1/2" x l" x l". Margins were regular. Skin, muscles, vessels & cervical bone were cut. Clotted blood was present, reddish brown in colour. Injury was ante mortem in nature. (4) There were multiple bruises on the back, varying in length, reddish in colour. Sizes were 6" x 1/8",5" x 1/8",4" x 1/8",7" x 1/8",3" x 1/8". (5) Incised wound on Rt. Wrist Joint (Ant. aspect) size 3" x 1/2" x l". Margins were regular, cut of Radius and Ulna bone, with nerve, vessels, muscles are cut. Clotted blood was present. Reddish brown in colour. Injury was ante mortem in nature. (6) Contusion with deformity of Lt. Wrist Joint. Radius and Ulna bones were fractured. 4. Cause of death of Ramcharan was opined to be haemorrhagic shock due to homicidal incised wounds resulting in cutting of the scalp bones with damage of the brain matter, cutting of the great vessels and nerves. Mode of death was homicidal. 5. (6) Contusion with deformity of Lt. Wrist Joint. Radius and Ulna bones were fractured. 4. Cause of death of Ramcharan was opined to be haemorrhagic shock due to homicidal incised wounds resulting in cutting of the scalp bones with damage of the brain matter, cutting of the great vessels and nerves. Mode of death was homicidal. 5. Shri Ajay Ayachi, learned counsel for the appellant Bharat LaI submitted at the very outset that he would assail the appellant's conviction under Section 302 read with Section 34 of the Indian Penal Code solely on the ground that the act of the appellant in assaulting Ramcharan on the back of head only once by means of a Danda would not travel beyond Section 304 Part II of the Indian Penal Code and since the appellant Bhamt Lal had already undergone incarceration from 14-10-2002 till date, i.e., 6 years and 5 months approximately, conviction of the appellant and the sentence awarded by the trial Judge should be modified to Section 304 Part II of the Indian Penal Code and to sentence already undergone by the appellant. No other argument was advanced. 6. On the other hand, Shri U.N.S. Deo, learned Government Advocate for the State/respondent argued that co-accused Rajendra, who is still absconding, is alleged to have inflicted the incised wounds by means of a Gandasa on the vital parts of Ram char an as narrated above. After the arrest of absconding accused Rajendra the prosecution would be leading evidence to prove the guilt of the absconding accused Rajendra. Therefore, the mere fact that the appellant who shared the common intention with Rajendra had inflicted only a single blow by a Danda on the back of head of Ramcharan would in no manner dilute the offence under Section 302 read with Section 34 of the Indian Penal Code for which the appellant stood convicted. Reliance was placed on Rajan Rai Vs. State of Bihar 1 and Paramjit Singh alias Mithu Singh Vs. State of Punjab through Secretary (Home;2. 7. Having heard the rival submissions, we have perused the record. In this appeal, it is not disputed by learned counsel for the appellant that Ramcharan had died a homicidal death. The manner in which Ramcharan had sustained injuries over vital parts shows that he was literally hacked by the Gandasa held by Rajendra. State of Punjab through Secretary (Home;2. 7. Having heard the rival submissions, we have perused the record. In this appeal, it is not disputed by learned counsel for the appellant that Ramcharan had died a homicidal death. The manner in which Ramcharan had sustained injuries over vital parts shows that he was literally hacked by the Gandasa held by Rajendra. The prosecution has also successfully proved that during the assault over Ramcharan by Rajendra and the appellant, the appellant had dealt a blow on the back of head of Ramcharan by means of a Danda. The sole question that requires consideration is whether the act of the appellant would fall under Section 304 Part II of the Indian Penal Code. The fact remains that even though the appellant had dealt the first blow on the back of head of Ramcharan by means of a Danda, he did not in any manner stop Rajendra from literally hacking Ramcharan by a Gandasa. This lends full support to the inference that the appellant was acting in concert with Rajendra at the time of occurrence with the intention of causing the death of Ramcharan. The manner in which Ramcharan sustained fractures of the parieto-occipital and temporal bone leaves no room for any doubt that the appellant was not only acting in concert with Rajendra but also intended to cause the death of Ramcharan and had in that process not only inflicted a blow on the back of head of Ramcharan by means of a Danda but also in no manner prevented Rajendra from causing any further injuries on Ramcharan. In Suresh & another Vs. State ofup.3, the Apex Court went to the extent of saying that it was not necessary for attracting Section 34 of the Indian Penal Code that the co-accused must be present at the scene of occurrence. Even an omission can in certain circumstances amount to an act. So the act mentioned in Section 34 of the Indian Penal Code need not be an overt act, even an illegal omission to do a certain act in_certain situation can amount to an act e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. So the act mentioned in Section 34 of the Indian Penal Code need not be an overt act, even an illegal omission to do a certain act in_certain situation can amount to an act e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim, such omission can also be termed as an act in a given situation. In Paramjit Singh alias Mithu Singh Vs. State of Punjab through Secretary (Home) (supra), it was held that in order to convict a person vicariously under Section 34 of the Indian Penal Code, it is not necessary to prove that each and every one of them had indulged in such overt act of inflicting deadly injuries. It is enough if the material available on record discloses that the overt act of one or more of the accused was or were done in furtherance of common intention. In the present case, the common intention shared by the appellant is evident from the fact that he struck the first blow on the back of head of Ram char an with Danda which fell Ramcharan on the ground and thereafter co-accused Rajendra repeatedly attacked Ramcharan with Gandasa and literally hacked him. The appellant in no manner tried to prevent Rajendra from hacking Ramcharan by a Gandasa. In such a situation, the nature of injury inflicted by the appellant on the victim and the question whether the injury inflicted by the appellant on the deceased was alone sufficient in the ordinary course of nature to cause death pales into insignificance. The appellant was not a curious onlooker but an active participant in causing death of Ramcharan. Therefore, the appellant is equally liable for the death of Ramcharan in the same manner as if the act of murder was done by him alone. The appellant was not a curious onlooker but an active participant in causing death of Ramcharan. Therefore, the appellant is equally liable for the death of Ramcharan in the same manner as if the act of murder was done by him alone. In this view of the matter, we are of the considered opinion that the conviction of the appellant for the offence under Section 302 read with Section 34 of the Indian Penal Code and the sentence awarded thereunder by the learned Additional Sessions Judge, Sakti is well merited and does not call for any interference in this appeal. 8. Accordingly, the appeal, being devoid of any merit, is dismissed. Appeal Dismissed.