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2011 DIGILAW 310 (CHH)

NAROTTAM v. STATE OF M. P.

2011-09-06

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2011
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. 1. These appeals are directed against the judgment dated 28th of January, 1994 passed in Session Trial No. 230/90 by the First Additional Session Judge, Raipur. By the impugned 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 sentenced to undergo 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 obstructed appellant-Sheshu @ Shesh Narayan who fired from a desi-katta on the deceased which resulted into his death. The matter was report by a co-passenger in GRP, Raipur. During the course of investigation, the accused persons were taken into custody and they were put for identification on 23.2.90. All the accused persons were duly identified in the Test Identification Parade (T.I.P.) by Vimla (PW-l - daughter of the deceased) and Ramchand Madhwani (PW-12 - a co-passenger). The T.I.P. was conducted by Executive Magistrate, Ashok Tiwari (PW-4). On discovery statement of appellant-Sheshu @ Shesh Narayan (Ex.-P/3), katta & cartridge were seized vide seizure memo Ex.-P/4; on discovery statement of appellant- Kumbhaj (Ex.-P/5), a knife was seized vide seizure memo Ex.-P/8; on discovery statement of appellant- Narottam (Ex.-P/6), a knife was seized at his instance vide seizure memo Ex.-P/11; and on discovery statement of accused-Chain Singh (Ex.-P/7), another knife was seized at his instance vide seizure memo Ex.-P/9. 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 learned 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 Court, therefore, it was proved that they participated in commission of robbery on the fateful day. 3. The learned 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 Court, therefore, it was proved 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 liable for punishment u/s 302 IPC, and since the other appellants shared common intention with Sheshu, they were also liable for punishment u/s 302 with the aid of Section 34 IPC. Since evidence of identification of 4th accused i.e. Chain Singh was doubtful, he was acquitted of the charges framed against him. 4. A report has been received from Superintendent, Central Jail, Raipur that appellant Sheshu @ Shesh Narayan and Kumbhaj have already been released on probation by the appropriate Government on 14.10.97 & 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 robbery and their conviction u/s 394/397 IPC. She has also not disputed the conviction of appellant Sheshu @ Shesh Narayan u/s 302 IPC. She only argued that in the prevailing facts and circumstances of the case, appellant-Narottam and Kumbhaj cannot be held responsible for commission of murder of the deceased with the aid of Section 34 IPC. 6. Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 7. We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. 8. The Session Judge has mainly relied on the testimonies of Vimla (PW-1) and Ramchand Madhwani (PW-12). Vimla is daughter of the deceased and Ramchand was a co-passenger. Both have identified the appellants during the course of the trial and they had also identified them in the Test Identification Parade conducted on 23.2.90 by Executive Magistrate, Ashok Tiwari (PW-4) who prepared the T.I.P. memo (Ex.-P/1). 9. So far as finding in relation to gun-shot injury caused by appellant-Sheshu @ Shesh Narayan is concerned, that is also established by the evidence of Vimla (PW-1). 9. So far as finding in relation to gun-shot injury caused by appellant-Sheshu @ Shesh Narayan is concerned, that is also established by the evidence of Vimla (PW-1). She deposed that when the accused persons were running after committing dacoity, accused/appellant- 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 the accused persons started snatching articles of Shindhi family, 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 appellants-Narottam and Kumbhaj did not share any common intention with appellant-Sheshu @ Shesh Narayan for commission of murder of the deceased. His act was individual which he did when he 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 appellants u/s 302 with the aid of Section 34 IPC cannot be sustained. 11. Section 34 IPC has been enacted on the principles of joint 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. In order to bring home the charge of common intention, 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 the 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 them has done it individually by himself. 12. 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. 12. In case on hand, in appreciation, we find that the common intention of the assailants was to commit robbery and not to commit murder of the deceased. They committed robbery in the above manner and when they were trying to run away from the bogie, the deceased caught appellant-Sheshu @ Shesh Narayan who was holding the katta and who ultimately fired by katta on the deceased. The facts and circumstances of the case would show that there was no plan or meeting of mind of all the appellants to commit murder of the deceased and even there is no evidence that they made it at the spur of moment before the commission of the crime. It appears that when appellant-Sheshu @ Shesh Narayan was caught by the deceased, he fired on the deceased to any how get rid from him so that he can also flee away. We are of the view 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 appellant-Sheshu @ Shesh Narayan u/s 302 IPC is also maintained. 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 Kumbhaj have 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 bail 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 matter. His bail bonds are Cancelled and surety stands discharged. Appeals Partly Allowed.