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2012 DIGILAW 121 (CHH)

LILARAM v. STATE OF M. P.

2012-04-25

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J 1. This appeal is directed against the judgment dated 10th of April, 1996 passed in Session Trial No. 31/95 by the Fifth Additional Session Judge, Durg. By the impugned judgment, the appellants have been convicted and sentenced in following manner with a direction to run the sentences concurrently:- Conviction Sentence Appellant - Lilaram (A-1): u/s 302 IPC Imprisonment for life and fine of Rs.500/-, in default S.I. for 6 months Appellants-Raju @ Laxman (A-2) & Samaylal Sahu (A-3): u/s 302/34 IPC Imprisonment for life and fine of Rs.500/-, in default S.I. for 6 months u/s 323 IPC R.I. for 1 year 2. The facts, briefly stated, are as under:- Khilavan Verma (PW-3) was student of 10th standard. Susheela is younger sister of Khilavan Verma (PW-3). The case of the prosecution is that Lilaram (A-1) had taken a photograph of Susheela when she had gone for Javara Visarjan. Khilavan Verma (PW-3) took it offending and went to Lilaram (A-1) for demanding photograph and negative of her sister. Lilaram (A-1) said that he had not taken the photograph and the same is not with him. Khilavan Verma (PW-3), Rupesh Chauhan (PW-4), Mahendra (PW-5), Ashwani Kumar (PW-6) and deceased-Komal Singh again visited the house of Lila ram (A-1) for getting the photograph. Lilaram (A-1) was not present in the house. Thereafter these persons went towards the tank to answer the call of nature. It was at about 9.00 p.m. on 25.4.1994. When they were returning from the tank, the appellants came on the way. Raju alias Laxman (A-2) and Samaylal (A-3) caught deceased- Komal Singh and Lilaram (A-1) gave knife blow to him. When Khilavan (PW-3) ran towards them, Raju (A-2) and Samaylal (A-3) also assaulted him. Thereafter the appellants ran away from the place of occurrence. Komal Singh was taken to Sector-9 Hospital, where he died in the night itself. The matter was reported to the police and the First Information Report (F.I.R. - Ex.-P/16) was recorded. The Investigation Officer gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. S.A. Khan (PW-9). He noticed following injuries on the dead body of the deceased:- (i) Stab wound 3 x 1 x 1.5 cm. The Investigation Officer gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. S.A. Khan (PW-9). He noticed following injuries on the dead body of the deceased:- (i) Stab wound 3 x 1 x 1.5 cm. on the left iliac region; (ii) Stitched wound over the left elbow; & (iii) Stitched wound of 8 inch on the right abdominal region. On internal examination, it was found that there were 2 cut injuries on the lower lobe of left lung. There were 2 cut injuries on diaphragm. Huge amount of blood was accumulated in the abdominal cavity. There was a cut injury of 2 cm. over the spleen. There was a cut injury over the lower lobe of the liver. It has gone upward to the level of chest and huge amount of blood was present in the heart membrane. There was an injury of 2 cm. on the superior venacava. All the injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. They were caused by hard and sharp object. The cause of death was shock on account of above injuries and it was homicidal in nature. The post-mortem report is Ex.-P/15. Khilavan Verma (PW-3) was also sent for medical examination. His MLC report is Ex.-P/14. He had received simple injuries. Among the 4 eye-witnesses namely-Khilavan Verma (PW-3), Rupesh Chauhan (PW-4), Mahendra (PW-5) and Ashwani Kumar (PW-6), except Khilavan Verma (PW-3) all turned hostile. 3. The learned Session Judge relied on the testimony of Khilavan Verma (PW-3) and held that the deceased was assaulted by knife by Lilaram (A-1) and the other 2 appellants i.e. Raju @ Laxman (A-2) and Samaylal Sahu (A-3) shared common intention with Lilaram (A-1). Raju @ Laxman (A-2) and Samaylal Sahu (A-3) also assaulted Khilavan Verma (PW-3) therefore, they were liable for punishment as above. 4. Mr. Raju @ Laxman (A-2) and Samaylal Sahu (A-3) also assaulted Khilavan Verma (PW-3) therefore, they were liable for punishment as above. 4. Mr. Atul Pandey, learned counsel appearing on behalf of the appellants, argued that the incident took place for a simple reason between the 2 groups of the students; there is no evidence that Raju @ Laxman (A-2) and Samaylal Sahu (A-3) shared common intention with Lilaram (A-1); only on account of holding the deceased, they cannot be convicted with the aid of Section 34 IPC; so far as appellant No.1- Lilaram (A-1) is concerned, he would also not be liable for punishment u/s 302 IPC as the evidence relating to his individual act is shakey. 5. On the other hand, Mr. Arvind Dubey learned Panel Lawyer appearing on behalf of the State, opposed these argument and supported the judgment passed by the Session Court. 6. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 7. Now we shall consider the conviction of appellants- Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) u/s 302 with the aid of Section 34 IPC. 8. We may explain the law on the point by quoting the portions of Para-6 & 7 of the judgment of the Supreme Court rendered in the matter of Aizaz & Ors. Vs. State of U.P. 2008 AIR SCW 5765: "6. Coming to the plea relating to Section 34 the Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the parties, is deemed in the eye of law to have been given by every individual present and abetting. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the parties, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. Leading feature of this Section is the element of participation in action. The essence of liability under this Section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result {See Ramaswami Ayyanagar and Ors. Vs. State of TamilNadu (AIR 1976 SC 2027)}. The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The Physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section cannot apply. 7. 'Common intention' implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. {See Krishna Govind Patil Vs. State of Maharashtra (AIR 1963 SC 1413). In Amrit Singh and Ors. Vs. State of Punjab (1972 Cri LJ 465 SC)} it has been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Magsogdan and Ors. Vs. State of U.P. (AIR 1988 SC 126) it was observed that prosecution must lead evidence from which the common intention of the accused 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 whether the 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 of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Barma and Ors. Vs. The State of Assam (AIR 1977 SC 2252) it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. In Bhaba Nanda Barma and Ors. Vs. The State of Assam (AIR 1977 SC 2252) it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him (See Malkhan and Anr.Vs. State of Uttar Pradesh (AIR 1975 SC 12). In the Oxford English Dictionary, the word "furtherance" is defined as 'action of helping forward'. Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russel on Crime 12th Edn. Vol. I pp. 487 and 488). In Shankarlal Kacharabhai and Ors. Vs. The State of Gujarat (AIR 1965 SC 1260) the Supreme Court has interpreted the word "furtherance" as 'advancement or promotion'." 9. In Ramashish Yadav and others Vs. State of Bihar 2000 Cri.L.J. 12 some what in similar situation, the Supreme Court held that "The common intention implies acting in concert, existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the atack It can also be developed at the spur of the moment but there must be prearrangement or premeditated concert. This being the requirement of law for applicability of S. 34 IPC, from the mere fact that accused "RP" and "RY" came and caught hold of deceased, whereafter 'SY' and 'SL' came with gandasa (chopper) in their hands and gave blows by means of gandasa (chopper), it cannot be said that the accused "RP" and "RY" shared the common intention with accused "SY" and "SL". Consequently, accused "RP" and "RY" cannot be held guilty of the charge under S. 302/34, IPC but accused "SY" and "SL" did commit the offence under S. 302/34, having assaulted deceased on his head by means of gandasa (chopper) on account of which he died." 10. In the instant case, out of 4 eye-witnesses, 3 have turned hostile and the conviction is based on the evidence of Khilavan Verma (PW-3). Khilavan Verma (PW-3) deposed that when they were coming from the tank, all of a sudden the appellants came in the gali and Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) caught deceased- Komal Singh. As soon as they caught him, Lilaram (A-1) attacked over the deceased by a knife. When he rushed towards Komal Singh (deceased), Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) assaulted him by hands & fists. Admittedly Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) were not holding any weapon. They were unarmed. There is no evidence to show as to why they caught the deceased. It was an incident of night and there is no evidence that there was sufficient light and Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) had seen that Liiaram (A-1) had took out the knife. Even if we presume that these 2 appellants-Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) would have seen that appellant- Lilaram (A-1) was holding a knife, it cannot be further presumed that they were having knowledge that appellant No.1 - Lilaram (AI) would attack over the deceased by the knife or he would commit the murder of the deceased. We do not find in the evidence of Khilavan Verma (PW3) that in fact Raju @ Laxman Verma (A-2) and Samayial Sahu (A-3) caught the deceased with an intention and for the reason to facilitate Liiaram (A-1) to give him knife blows. Therefore, there does not appear to be an evidence of pre-arranged plan or a prior concert. There is no evidence of prior meeting of minds. In the above facts and circumstances of the case, the conduct of Raju @ Laxman Verma (A-2) and Samayial Sahu (A-3) would show that they never shared a common intention with Liiaram (A-1) for commission of murder of the deceased. There is no evidence of prior meeting of minds. In the above facts and circumstances of the case, the conduct of Raju @ Laxman Verma (A-2) and Samayial Sahu (A-3) would show that they never shared a common intention with Liiaram (A-1) for commission of murder of the deceased. Therefore, the conviction of Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) u/s 302 with the aid of Section 34 IPC cannot be sustained. 11. Now we shall consider the case of appellant No.1 - Lilaram (A- I). 12. Appellant No.1- Lilaram (A-1) attacked over the deceased by knife and attack was so severe that the knife blow had caused 3 external injuries on the vital parts of the body and the lung, diaphragm, spleen and liver were damaged having received cut injuries. Khilavan Verma (PW-3) is an injured eye-witness, therefore, his presence at the place of occurrence cannot be doubted. He has elaborately described the manner of assault given by Lilaram (A-1). There is ample evidence to show that Lilaram (A-1) assaulted the deceased by knife due to which the deceased received above injuries and succumbed to those injuries. The manner of assault, the severity of the blow, the part of the body chosen for inflicting the blows and the organ got damaged on account of knife blows given by Lilaram (A-1) would show that he had an intention to commit murder of the deceased. We are of the view that in the above facts and circumstances of the case, Lilaram (A-1) would be liable for punishment u/s 302 IPC. 13. So far as conviction of Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) u/s 323 IPC is concerned, Khilavan Verma (PW-3) has deposed in clear words that he was assaulted by these appellants by hands & fists, therefore, their conviction u/s 323 IPC was fully justified. 14. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to Lilaram (A-1) u/s 302 IPC are maintained. The conviction and sentences awarded to Raju @ Laxman Verma (A-2) and Samaylal Sahu (A-3) u/s 302/34 IPC are set-aside. They are acquitted of these charges. However, the conviction and sentence awarded to them u/s 323 IPC are maintained. Appeal Partly Allowed.