Madhya Pradesh High Court
Banti @ Pratap Singh vs The State Of Madhya Pradesh on 12 March, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No. 740 of 2008
Parties Name Banti @ Pratap Singh,
S/o Sundar Singh Rajput,
aged about 30 years,
R/o Maruti tal,
P.S. Damoh Dehat,
District-Damoh(M.P.)
Vs.
The State of Madhya Pradesh
through P.S. Damoh Dehat,
District-Damoh (M.P.)
Bench Constituted Hon'ble Shri Justice S.K.Gangele
&
Hon'ble Smt. Justice Anjuli Palo
Judgment delivered by Hon'ble Shri Justice S.K.
Gangele
Whether approved for Yes/No
reporting
Name of counsels for For appellant: None present.
parties Shri S.S. Baghel, Amicus Curiae.
For respondent/State: Shri Vijay
Soni, G.A.
Law laid down
Significant paragraph
numbers
JUDGMENT
(13.03.2018) Two persons were accused in this case.
Sonu@Rajendra was declared absconder.
The present appellant has filed this appeal under Section 374(2) of Cr.P.C., against the judgment dated 14.02.2008 passed by Sessions judge, Damoh(M.P.) in S.T. No.259/2006. The appellant was prosecuted for commission of offence punishable under section 302 of IPC and awarded R.I. for life with fine of Rs. 2000/- and under section 307 of IPC and awarded R.I. for 10 years with fine of Rs. 1000/-, with default stipulations.
2. Prosecution story in brief is that on 30.06.2006 the appellant Banti abused the complainant Vindravan and Complainant also abused him. On the date of incident appellant Banti and another accused Sonu went to the house of Vindravan. Thereafter they returned back at around 10:00 p.m. When the complainant Vindravan and his brother Ramesh(Mamera Bhai) were returning back from their Kirana Shop and when they reached at the house of Banti on the way Banti who was armed with Baka and his another brother Sonu who had armed with knife abused them and they had attacked the complainant and inflicted injuries at him. His brother Ramesh tried to save Vindravan then both the accused attacked at him. He was died. FIR was lodged at the police station. Police conducted investigation and filed charge-sheet. During Trial, the appellant abjured guilt and pleaded for innocence. The Trial court has held the appellant guilty and awarded punishment as mentioned hereinabove.
3. Vindravan (PW-11) deposed that on the date of incident at around 08:00 to 08:30 p.m., in the night, there was some quarrel between me and Banti, because the appellant under the influence of liquor had slapped my brother(Mamera Bhai), when we were returning back and when we reached at the house of appellant, both Banti and his brother came from their house. Banti had Baka in his hand and Sonu had knife. They had attacked me and inflicted injuries. Present appellant had inflicted blow of Baka on the right hand. At that time the deceased who was my brother tried to save me. I also cried thereafter my mother and wife came at the spot and other persons had also come out from their houses. At that time Sonu and Banti had dragged Ramesh and they had taken him behind their house. I went to the police station and lodged report. Thereafter I was sent to District Hospital, Damoh and I was admitted there. My brother and Bhabhi told me that Ramesh was died because both the appellants had inflicted injuries on him.
4. Annu Bai (PW-15), wife of complainant, turned hostile and she deposed that she did not know who had killed the deceased.
5. Kesar Bai (PW-16), Mother of the complainant, also declared hostile. She deposed that after hearing a sound of quarrel I came out from my house alongwith my daughter-in-law Annu Bai. Thereafter I noticed that Vindravan was lying on the earth and blood was oozing from him. When I took Vindravan to District Hospital, Damoh he was unconscious. She denied the fact that she had knowledge that who had killed the deceased.
6. Other witnesses are turned hostile.
7. Dr. N.K. Patel (PW-3) deposed that on 02.07.2006 I examined Vindravan and noticed following injuries on his body.
1. One stab wound near the waist behind the back of 2.5x 0.5 x 1 cm.
2. One incised wound on left side of the chest of 6 x 0.4 x 0.4 cm and two scratches.
Injury No. 1 was caused by sharp pointed weapon and injury No. 2 was caused by sharp edged weapon. The injuries were simple in nature.
8. In his cross-examinatiion he admitted that injury No. 2 could be caused by an axe. He further deposed that on the same date he had also examined appellant Banti and noticed following injuries:-
1. One stab wound on left upper arm of 2 1/2 x ½ inch
2. One stab wound on left upper arm of 1 x 1/2 Inch.
Injuries were caused by sharp edged weapon and adviced for X-ray. The person who was admitted in the hospital. M.L.C. is Ex. D-1. From the possession of the present appellant a Baka was seized.
9. Dr. N.K. Patel had again examined prosecution witness PW-2 because the surgeon who performed autopsy of the deceased was not traceable. He deposed that Doctor Shridhar Sharma performed autopsy of the deceased and submitted his report which is Ex. P-27. In accordance with the postmortem report, two injuries were found on the body of the deceased.
1. One stab wound on the stomach 1 ½ x ½ inch deep perital wound of intenstine came out. There was incised wound on right thigh of 1 x ½ x up to muscle deep.
Deceased was died due to the stab wound on the stomach. He further deposed that if immediate medical aid was available to the deceased, he could be saved.
10. L.N. Bhadoriya (PW-18) Investigation Officer, deposed that on 03.07.2006 I prepared the spot map which is Ex. P-20. I also seized plain and red earth from the spot vide seizure memo Ex. P-
4. I recorded statements of the witnesses. On the memorandum of the appellant Banti a Baka (Ex. P-9) was seized vide seizure memo Ex. P-10.
11. Other witnesses turned hostile. PW-11 is the injured eye- witness. His evidence is reliable. He, in his evidence deposed that present appellant Banti and absconder co-accused both had dragged the deceased Ramesh and they had taken him back side of their house. The appellant was armed with sharp edged weapon Baka. The said weapon has been seized from the appellant. The aforesaid witness did not depose that he had seen that the appellant had inflicted injuries on the person of the deceased. He deposed that appellant had inflicted injury to him. However, this fact has been proved that the appellant and his brother (absconding accused) had taken the deceased behind their house thereafter deadbody of the deceased was found lying. There was incised wound on the thigh of the deceased as per the evidence of Docter (PW-22) although he did not performed the postmortem. The Doctor who performed the postmortem was absconded. It is also a fact that the present appellant had also received two stab injuries in the incident. Those injuries has not been explained by the prosecution. The appellant, in his statement, recorded by the Trial court under Section 313 of Cr.P.C. stated that on 30.06.2006 at around 10:00 p.m. complainant Vindravan came to my house. He had nocked my door and thereafter he caught hold me and he had inflicted injury on me by sword. I lodged a report against Vindravan and other persons. I was also medically examined. This is also a fact that a criminal case was registered against complainant Vindravan injured, eye-witness and three other accused persons for commission of offence punishable under Section 324,34 and 323 of IPC.
12. The deceased was died due to injury suffered by him on stomach The allegation against appellant that he had caused injury at the thigh of the deceased. The aforesaid injury was not dangerous to the life. The deceased was died due to the stab injury. As per the evidence of Doctor (PW-22).
13. Hence, in our opinion, the trial court has committed error in convicting the appellant for commission of offence punishable under Section 302 of the IPC.
14. Now the next question is that whether the appellant could be convicted with the aid of Section 34 of the IPC for commission of offence of murder. The Hon'ble Supreme Court in Vijendra Singh Vs. State of Uttar Pradesh, (2017) 11 SCC 129 has held as under in regard to applicability of Section 34 of the IPC:-
22. In this regard, we may usefully refer to a passage from the authority in Pandurang v. State of Hyderabad10. The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that: (AIR p. 222, paras 32-33) "32. ... It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor11. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan.
In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case:
Barendra Kumar Ghosh v. King Emperor12 and Mahbub Shah v. King Emperor11. As their Lordships say in the latter case, 'the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice'.
33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a prearranged plan however hastily formed and rudely conceived. But prearrangement there must be and premeditated concert.
It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose."
23. And, again: (Pandurang case10, AIR p. 222, para 34) "34. ... But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, 'the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis'. (Sarkar's Evidence, 8th Edn., p. 30.)"
24. In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh7. In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. The common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. Thereafter, the Court held: (Mohan Singh case7, AIR p. 181, para 13) "13. ... It is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King Emperor11 common intention within the meaning of Section 34 implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the prearranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."
25. In Harshadsingh Pahelvansingh Thakore8, a three- Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled thus: (AIR p. 643, para 7) "7. ... Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P.13; Maina Singh v. State of Rajasthan14.) Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse "They also serve who only stand and wait" a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code."
26. In Lallan Rai v. State of Bihar15 the Court relying upon the principle laid down in Barendra Kumar Ghosh12 has ruled that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result.
27. In Goudappa v. State of Karnataka16 the Court has reiterated the principle by opining that Section 34 IPC lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.
28. The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained from the evidence brought on record. 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 fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See Kripal v. State of U.P.17.) In Bharwad Mepa Dana v. State of Bombay18, it has been held that Section 34 IPC is intended to meet a case in which it may be difficult to distinguish the 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. The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted."
15. In the aforesaid judgment Hon'ble Supreme Court quoted the earlier judgment of the Apex Court recorded in the case of Pandurang Vs.State of Hyderabad, AIR 1955 SC 216 . In the aforesaid judgment the Hon'ble Supreme Court has held that for convicting the persons with the aid of Section 34 it has to be proved that there was a common intention and there was prior meeting of mind to form a prearranged plan. If several persons had attacked a person, the individual may be liable for the act of any of the other whether he caused injury to the person or not. They could not be convicted, if prosecution cannot prove that there was a common intention and the prior meeting of mind.
16. In the present case, appellant had also received two stab wounds. Those injuries are not explained by the prosecution. The Doctor (PW-3) examined the present appellant deposed that the injuries suffered by the appellant could not be self inflicted injuries. The evidence is that two accused persons had dragged the deceased and they had taken him back side of the house.
17. Looking to the aforesaid evidence, in our opinion, it could not be said that there was common intention and pre-arragned planning. It appears that there was a quarrel between the appellant and the complainant party and in that quarrel the appellant also received two stab wounds. Hence, the appellant is liable for his individual act. The deceased received one incised injury at his thigh and looking to the nature of injury, offence committed by the appellant would fall under Section 324 of the IPC. Similarly, Vindravan (PW-11) also received incised injuries. Doctor opined that injuries were simple in nature Hence, the appellant is liable to be convicted in commission of offence punishable under Section 324 of IPC causing injury to complainant.
18. In view of aforesaid analysis, the appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial court is hereby set aside. The appellant is convicted for commission of offence punishable under Section 324 of IPC on two counts. He is awarded a sentence of R.I. for four years. He is in jail from the date of arrest I.e. 03.07.2006. He has already suffered more than 11 years in jail. Therefore, he be released forthwith if he is not required in any other case.
We appreciate the assistance provided by learned amicus curiae.
(S.K.Gangele) (Anjuli Palo)
Judge Judge
VD
Digitally signed
by VARSHA
DUBEY
Date: 2018.03.17
12:10:29 +05'30'