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2012 DIGILAW 183 (CHH)

BODHRAMRAWAT v. STATE OF M. P.

2012-07-27

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 17th of July, 1995 passed in Sessions Trial No. 184/1993 by the First Additional Sessions Judge, Raigarh. 2. By the impugned judgment, the appellants have been convicted under Sections 302, 324 and 323 all read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 100/-; R.I. for 6 months and to pay fine of Rs. 100/-; and R.I. for 6 months and to pay fine of Rs. 100/-, respectively, with default sentences of 1 month under each count with a further direction to run the sentences concurrently. 3. The facts, briefly stated, are as under:- The appellants are real brothers. 08.03.1993 was the day of Holy festival. In the day time, appellant No. 1 and deceased-Divaram consumed liquor. Thereafter, they started quarrelling. They scuffled with each other. The quarrel was pacified by the villagers and they went to their houses. The allegations are that in the night, at about 9:00 p.m., the appellants started quarrelling with the deceased and in the said quarrel appellant No. 1 gave single blow of Farsa on the neck of the deceased. When the father of the deceased namely-Matwar (P.W.1) came to rescue, he was assaulted by both the appellants. Appellant No. 2 was holding a Danda. First Information Report (Ex-P-1) was lodged by Matwar (P.W.1), on which, an offence under Section 326/34 IPC was registered. Deceased Divaram and Matwar both were sent for their medical examinations vide Ex-P-13 and P-14. They were examined by Dr. Rakesh Verma (P.W.9). Deceased-Divaram had sustained an incised wound of 4 X 1 X 2½ inches on the right portion of his neck. Matwar (P.W.1) had received a laceration, contusion, abrasion and an incised wound of 2 X ½ X ½ inches on his right elbow joint (four injuries), which were simple injuries. Divaram was referred to District Hospital, Raigarh. He died during the course of his treatment on 09.03.1993 at about 12:50 p.m. On his postmortem examination, it revealed that on account of the injury caused on his neck fifth cervical vertebra was cut. The incident was witnessed by Matwar (P.W.1). Divaram was referred to District Hospital, Raigarh. He died during the course of his treatment on 09.03.1993 at about 12:50 p.m. On his postmortem examination, it revealed that on account of the injury caused on his neck fifth cervical vertebra was cut. The incident was witnessed by Matwar (P.W.1). The learned Sessions Judge held that appellant No. 1 caused injury on neck of the deceased and he also caused simple injury to Matwar (P.W.1) by Farsa and appellant No. 2 shared common intention with him, therefore, both were liable for punishment as above. 4. Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellants, argued that there is no evidence of common intention, thus, conviction of appellant No. 2 with the aid of Section 34 IPC cannot be sustained. For appellant No. 1, she argued that on the day of Holy, after taking liquor, in a sudden quarrel, appellant No. 1 gave single blow to the deceased, which proved fatal and the deceased died on the next day during the course of his treatment, therefore, an offence under Section 302 IPC would not be made out and appellant No.1 would be liable for punishment under some lesser Section preferably Part I and II of Section 304 of IPC. 5. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 6. We have heard learned counsel for the parties at length and have also perused the records of the Sessions case. 7. Firstly we shall examine the conviction of appellant No. 2 with the aid of Section 34 of IPC. 8. Section 34 has been enacted on the principle 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. 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. To constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them. This is what the Supreme Court said on many occasions while interpreting the provisions of Section 34 IPC. Therefore, the acts may be different in character, but it should be proved that they must have been actuated by one and the same common intention in order to attract the provisions of Section 34 IPC. 9. Matwar (P.W.1) is father of deceased-Divaram. At the time of the incident, he was sitting in a village Panchayat. According to him, his wife came in the Panchayat and told that the appellants are quarrelling with the deceased. The houses of the appellants and the deceased are situated in front of each other. The quarrel was going on in front of the houses of the appellants. Matwar (P.W.I) deposed that when he reached at the place of occurrence, he saw that appellant No. 1 was armed with a Farsa and appellant No. 2 was armed with a Lathi. Appellant No. 1 assaulted his son by Farsa, which caused injury on his neck. Though, he deposed that appellant No. 2 also assaulted the deceased by Lathi, but no injury of Lathi was found on the person of the deceased. He further deposed that when he tried to intervene both the appellants assaulted him, due to which, he sustained above injuries. In his cross-examination in para 13, he deposed that when he reached there a quarrel took place between him and the appellants prior to the main incident. He further deposed that when he tried to intervene both the appellants assaulted him, due to which, he sustained above injuries. In his cross-examination in para 13, he deposed that when he reached there a quarrel took place between him and the appellants prior to the main incident. On appreciation of his evidence, it appears that while quarrel was going on between the appellants, deceased and this witness, all of a sudden appellant No. 1 gave a Farsa blow to the deceased. Admittedly, the quarrel took place in front of the house of the appellants, therefore, presence of appellant No. 2 at the place of occurrence cannot be doubted. Appellant No. 2 has not participated in assaulting the deceased. He was armed with Lathi. There is no evidence to show that appellant No. 2 had knowledge of intention of appellant No. 1 that he would be assaulting the deceased by Farsa in the above manner. On appreciation, we do not find any evidence to hold that the act of appellant No. 1 was actuated by one or the same common intention so as to attract the provisions of Section 34 IPC. Therefore, conviction of appellant No. 2 under Section 302 or 324 IPC with the aid of Section 34 IPC cannot be sustained as it was not proved that he shared common intention with appellant No.1. 10. Now, we shall examine the case of appellant No. 1. 11. Admittedly, appellant No. 1 gave single blow of Farsa on the neck of the deceased due to which, the deceased sustained above injury. Matwar (P.W.1) deposed that his wife came at the Panchayat place and told him that a quarrel was going on between the appellants and the deceased. He immediately ran to his house leaving the Panchayat. In cross-examination, in para 5 & 6, he admitted that he took about 20 minutes to reach to the place of occurrence. This shows that a quarrel was going on between the appellants and the deceased since last 30-40 minutes because his wife must have also consumed 10-15 minutes to reach to the Panchayat place. He has also admitted in para 13 that a quarrel also took place between him and the appellants prior to the main incident. This shows that a quarrel was going on between the appellants and the deceased since last 30-40 minutes because his wife must have also consumed 10-15 minutes to reach to the Panchayat place. He has also admitted in para 13 that a quarrel also took place between him and the appellants prior to the main incident. The above evidence of Matwar (P.W.1) would show that this is not a case, in which appellant No. 1 came out of the house and gave Farsa blow to the deceased. On the contrary, it appears that quarrel was going on between both the parties since last 30-35 minutes, and thereafter the incident of assault by appellant No. 1 to the deceased took place. Thus, a long quarrel preceded the incident. Admittedly, appellant No. 1 gave single blow to the deceased. Had the appellant No. 1 intention to commit murder of the deceased, he would have repeated the blows, which he did not do. The death has also not occurred instantaneously and the deceased died on the next day while his treatment in the hospital. The over all act of appellant No. 1, therefore, does not indicate that he had intention to commit murder of the deceased as all of a sudden he gave single blow to the deceased and there was no preparation or premeditation. We are of the view, that in the above facts and circumstances of the case an offence under Section 302 IPC would not be made out and the appellant No. 1 would be liable for punishment under Part-I of Section 304 IPC. 12. So far as the other offences are concerned it is proved that appellant No. 1 caused simple injuries to Matwar (P.W.1) by using Farsa and appellant No. 2 also caused simple injuries to Matwar (P.W.1) by using Lathi, and for such acts, appellant No. 1 would be further liable for punishment under Section 324 IPC and appellant No. 2 would be liable for punishment under Section 323 IPC. 13. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the appellants under Sections 302, 324 & 323 read with Section 34 IPC are set-aside. Instead thereof appellant No. 1 is convicted under Section 304 Part-I IPC and sentenced to undergo R.I. For 10 years. 13. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the appellants under Sections 302, 324 & 323 read with Section 34 IPC are set-aside. Instead thereof appellant No. 1 is convicted under Section 304 Part-I IPC and sentenced to undergo R.I. For 10 years. He is further convicted under Section 324 IPC and sentenced to undergo R.I. for 2 years with a direction to run the sentences concurrently. Appellant No. 1 has already undergone for more than 10 years, therefore, he need not surrender before the Court. Appellant No. 2 is convicted under Section 323 IPC and sentenced to undergo imprisonment for 1 year. He has also undergone more than this period. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Appeal Partly Allowed.