Madhya Pradesh High Court
Pappu @ Babboo @ Kala vs The State Of Madhya Pradesh on 13 July, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
Cr.A. No.990/2011 & Cr.A. No.197/2013
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 13TH OF JULY, 2022
CRIMINAL APPEAL No.990 OF 2011
BETWEEN :-
PAPPU @ BABBOO @ KALA
S/O CHHOTE KHAN
AGED ABOUT 55 YEARS
OCCUPATION: LABOUR
HAT MOHALLA SARANGPUR
DISTRICT RAJGARH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI P K SAXENA, SENIOR COUNSEL WITH SHRI SUNIL
VERMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH P.S. SARANGPUR
DISTRICT RAJGARH (M.P.)
.....RESPONDENT
(BY SHRI SUDHANSHU VYAS, G.A. FOR STATE)
&
CRIMINAL APPEAL No.197 OF 2013
BETWEEN :-
2
Cr.A. No.990/2011 & Cr.A. No.197/2013
RAHIS S/O MEHBOOB
AGE ABOUT 45 YEARS
OCCUPATION : SARANGPUR
DISTRICT RAJGARH (M.P.)
.....APPELLANT
(BY SHRI PRASANNA PRASAD, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH P.S. SARANGPUR
DISTRICT RAJGARH (M.P.)
.....RESPONDENT
(BY SHRI SUDHANSHU VYAS, G.A. FOR STATE)
Reserved on : 07.04.2022
Delivered on : 13.07.2022
----------------------------------------------------------------------------------------------
These appeals coming on for judgement this day, Hon'ble Shri
Justice Satyendra Kumar Singh passed the following:
JUDGEMENT
Both these appeals have been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."]. First Criminal Appeal bearing No.990/2011 has been filed by appellant Pappu @ Babboo @ Kala S/o Chhote Khan against the judgement dated 22.07.2011 passed by the Court of Additional Sessions Judge, Shajapur (M.P.) in S.T. No.195/1994, while second Criminal Appeal bearing No.197/2013 has been filed by appellant Rahis S/o Mehboob against the judgement dated 31.12.2012 passed by the Court of Special Judge SC/ST (Prevention of Atrocities) Act, 3 Cr.A. No.990/2011 & Cr.A. No.197/2013 District Rajgarh (Biaora) in S.T. No.194/2012. Vide impugned judgements, appellants have been convicted under Section 302 r/w 34 (2 counts) and 324 r/w 34 of the Indian Penal Code, 1860 (in short "IPC") and sentenced them as under :-
S. Conviction Sentence
No. Imprisonment Fine Additional
amount imprisonment
in default of
payment of
fine
1 302/34 of IPC Life Rs.1,000/- 6 months RI
(two counts) imprisonment (two counts) (two counts)
(two counts)
2 324/34 of IPC 3 years RI - 6 months RI
2. Since both the appeals relate to the same incident and till closing of the evidence of prosecution, both the appellants were tried together and have been concluded on the same facts of evidence therefore, this judgement shall govern the disposal of both the appeals.
3. Prosecution story, in brief is as follows :-
(i) Appellants alongwith 15 other co-accused persons were prosecuted for the offences punishable under Sections 148, 302, 324 and 323, in the alternative 302/149, 324/149 and 323/149 of the IPC on the allegations that on 16.08.1994, at about 7.50 PM in Mohalla Sarangpur, appellants alongwith other co-accused persons formed an unlawful assembly with a view to use force and belabor Chand Khan, Shabir Khan, Ashfaq and Zaira Bano and committed rioting. The members of 4 Cr.A. No.990/2011 & Cr.A. No.197/2013 the assembly were armed with deadly weapons like sword, gupti, lathi etc. They, in furtherance of their common object committed murder of Chand Khan and Shabir Khan and also caused injuries to Ashfaq Khan and Zaira Bano.
(ii) FIR No.01/1994 under Sections 147, 148, 302/149 and 307/149 of the IPC was lodged at Police Station Mandai Chowk, Sarangpur (M.P.), according to which 18 accused including the appellants armed with deadly weapons came from the mosque way, stopped Chand Khan and started beating him with weapons with an intention to kill him.
After hearing the hue and cry made by Chand Khan, his sons Shabir, Ashfaq, Anees, wife Zaira Bano and brother Usman Ali came running to the place of occurrence and after seeing the incident, they were so scared that they could not muster the courage to intervene immediately. After sometime, when Shabir, Ashfaq and Zaira Bano tried to rescue Chand Khan, they were also assaulted. Chand Khan and Shabir were badly injured and had fallen down on the ground, while Ashfaq and Zaira Bano also got injuries on their persons at the hands of the accused persons. Chand Khan and Shabir were taken in a jeep to the hospital where Chand Khan was declared dead, while Shabir was sent to the District Hospital, Shajapur, where he was also declared dead.
(iii) The Investigating Officer sent the dead bodies for post-mortems which were conducted by Dr. R. P. Sharma. In his opinion, the cause of 5 Cr.A. No.990/2011 & Cr.A. No.197/2013 death of both Chand Khan and Shabir was excessive hemorrhage resulting in injuries to brain and lungs. Ashfaq was also examined medically. After completing the investigation, out of 18 accused persons, 17 accused were put to trial for offences under Sections 148, 302, 324 and 323, in the alternative 302/149, 324/149 and 323/149 of the IPC. One Nanhe Khan @ Abdul Wahid died before commencement of trial. Appellants and other accused persons denied the charges and pleaded that they were falsely implicated and claimed trial.
4. During trial, after closing of the evidence of prosecution, at the stage of accused statements, appellants Pappu @ Babboo @ Kala S/o Chhote Khan and Rahis S/o Mehboob did not appear on 24.02.1997 and 01.05.1997 respectively therefore, learned Trial Court i.e. the Court of Special Judge/Additional Sessions Judge, Shajapur excluding the trial of appellants, concluded the trial with regard to rest of the co-accused persons and vide judgement dated 24.09.1998 passed in S. T. No.195/1994 convicted accused persons namely, Abdul Sayeed, Rais @ Toun, Mumtaz, Rafique under Section 302 of IPC, accused Hanif under Sections 147, 304-II and 324 of IPC, accused Sayeed under Sections 148 and 324 of IPC, accused persons namely, Aslam and Jalil under Section 148 of IPC, accused persons namely, Khalil, Hussain Khan, Aziz Khan, Nasir Khan, Munim Khan and Bashir Khan under Section 147 of IPC, while vide judgement dated 11.01.2001 passed in S. T. 6 Cr.A. No.990/2011 & Cr.A. No.197/2013 No.190/1994, convicted accused Iqbal @ Bhura under Section 302 and 148 of IPC.
5. All the said convicts filed Criminal Appeal Nos.1191/1998, 1210/1998, 1233/1998 and 281/2001 before the High Court of Madhya Pradesh. The State of Madhya Pradesh also filed Criminal Appeal No.1447/1998 against acquittal of some of the accused for offences under Sections 302/149, 324/149 and 323/149 of the IPC. As all the appeals were related to the same incident, the High Court disposed of all the appeals by the common judgement and order dated 12.01.2006, wherein the accused persons namely, Abdul Sayeed Khan, Rahis @ Toun, Rafique, Mumtaz and Iqbal @ Bhura had been convicted under Sections 302/34 of the IPC setting aside their conviction under other Sections of the IPC. The High Court allowed Criminal Appeals with regard to the other co-accused persons and acquitted them from all the charges. The appeal filed by the State of Madhya Pradesh was partly allowed.
6. All the above convicted accused persons namely, Abdul Sayeed, Rafique, Rais @ Toun, Mumtaz and Iqbal @ Bhura filed Criminal Appeal Nos.1243/2007, 1399/2008, 1363-65/2010 before the Hon'ble Apex Court, which was dismissed vide judgement dated 24.09.2010.
7. Appellant Pappu @ Babboo @ Kala S/o Chhote Khan was arrested on 18.03.2010 and thereafter, trial against him was concluded before the Court of Additional Sessions Judge, Shajapur (M.P.), while appellant Rahis S/o 7 Cr.A. No.990/2011 & Cr.A. No.197/2013 Mehboob was arrested on 26.09.2011 and trial against him was concluded before the Special Judge SC/ST (Prevention of Atrocities) Act, District Rajgarh (Biaora) and were convicted under Sections 302/34 and 324/34 of IPC vide impugned judgements dated 22.07.2011 and 31.12.2012 respectively and sentenced as mentioned aforesaid in para-1 of this judgement.
8. Learned counsel for the appellant Pappu @ Babboo @ Kala S/o Chhote Khan submits that as per prosecution case itself, on the date of incident, appellant was having lathi and this Court vide judgement dated 12.01.2006 passed in Criminal Appeal Nos.1191/1998, 1210/1998, 1233/1998, 281/2001 and 1447/1998, it has already been held that accused persons having lathi were not member of unlawful assembly and were not sharing common intention to commit murder of deceased Chand Khan and Shabir therefore, learned Trial Court has committed error in holding the appellant guilty for the offence of murder of both the above deceased and causing injuries to Ashfaq. On the same set of evidence, co-accused persons namely, Hanif Khan, Sayeed Khan, Jalil Khan, Aslam, Khalil Khan, Hussain Khan, Nasir Khan, Munim Khan and Bashir Khan have been acquitted therefore, the impugned judgement dated 22.07.2011 convicting the appellant is not sustainable and is liable to be set aside. He further submits that learned Trial Court has not properly appreciated the evidence produced on record. Therefore, the impugned judgement of conviction and order of sentence may be set aside and 8 Cr.A. No.990/2011 & Cr.A. No.197/2013 the appellant may be acquitted from the charges framed against him.
9. Learned counsel for the appellant Rahis S/o Mehboob submits that at the time of incident, this appellant was not present on the spot as he was doing his job on the bus of Purohit Bus Services as conductor. He further submits that eye-witnesses namely, Anees (PW-1), Ashfaq (PW-2) and Usman Ali (PW-4) have nowhere deposed that appellant assaulted Shabir, Ashfaq. Anees (PW-1) and Ashfaq (PW-2) have deposed that appellant assaulted Chand Khan with sword but no injury attributed to the sword which was said to be seized from the possession of this appellant. Recovery memo of the aforesaid article do not bear signature of the appellant. Vide judgement dated 12.01.2006 passed by this Court, it has already been found that there was no unlawful assembly at the time of incident and prior meeting of mind of the appellant alongwith other co-accused persons have not been proved therefore, convicting the appellant with the aid of Section 34 of the IPC is not sustainable. Counsel has placed reliance on the judgement of the Hon'ble Supreme Court in the case of Ezajhussain Sabdarhussain & another vs. State of Gujarat, 2019 (14) SCC 339. Counsel further submits that appellant has already suffered more than 12-1/2 years incarceration, in the alternative, if the appellant is found guilty, then all the sentences were required to be run concurrently,
10. Per contra, learned Public Prosecutor for the respondent-State, while 9 Cr.A. No.990/2011 & Cr.A. No.197/2013 supporting the impugned judgements of conviction and order of sentence submits that the judgements were passed by the Trial Court after proper appreciation of evidence available on record. Same is well reasoned establishing the guilt of the appellants beyond reasonable doubt. Therefore, confirming the impugned judgements of conviction and order of sentence, the appeals filed by the appellants may be dismissed.
11. We have considered the rival submissions made by learned counsel for the parties and perused the record.
12. As mentioned hereinabove, 18 persons had allegedly participated in the crime. As per the prosecution, on the date of occurrence i.e. on 16.08.1994, at about 11.00 AM, one Kamlabai D/o Devkaran, neighbour of informant Anees (PW-1) was molested by co-accused persons Munim Khan and Mumtaz Khan in the fields of Faqir. Smt. Gorabai, mother of Kamlabai complained to Chand Khan with regard to the said incident. Chand Khan went to advise the uncle of Munim Khan and appellant Pappu @ Babboo @ Kala S/o Chhote Khan in this regard and scolded them. He also gave one slap to appellant Pappu @ Babboo @ Kala. The appellants and other co-accused persons did not like the conduct of Chand Khan and in the evening, appellants and co-accused persons committed the offence mentioned hereinabove. In fact, this had been the motive for commission of the offence.
13. Out of the 18 accused persons, one had died prior to the commencement 10 Cr.A. No.990/2011 & Cr.A. No.197/2013 of the trial, while ten stood acquitted. Five accused were convicted by this Court and their convictions had been affirmed by the Hon'ble Apex Court. Therefore, we are concerned only with the cases of these two appellants.
14. The prosecution examined 12 witnesses including Anees (PW-1), Ashfaq (PW-2) and Usman Ali (PW-4), as eye-witnesses. The other relevant witnesses were Dr. R. P. Sharma (PW-3) who conducted the post-mortems on the bodies of the deceased, Ramesh Kumar Dubey (PW-7) and Rajmal Sharma (PW-8) who had investigated the case.
15. As per the Autopsy Report (Exhibit-P/7-A), prepared by Dr. R. P. Sharma (PW-3) in respect of Chand Khan, the following external injuries were noticed :-
1. Incised wound on head at occipital region, 1.5 cm x 1 x bone deep with fracture.
2. Incised wound on right parietal region 2.5 cm x 0.5 x bone deep fracture of right parietal bone, clotted blood on cerebral membrane.
3. Incised wound on left leg 10 cm x 2 cm upto bony region of Tibia.
4. Stab wound on left side of chest between 3rd and 4th rib deep upto lung 1.5 cm x 0.5 cm x deep upto left lung puncture.
5. Incised wound on left arm of posterior surface 5 cm x 2 cm x 0.5 cm.
6. Lacerated wound over the left eye 1 cm x 0.5 cm x 0.25 cm.11
Cr.A. No.990/2011 & Cr.A. No.197/2013 In the opinion of the doctor, grievous injures to vital organs i.e. head and lungs caused excessive hemorrhage which resulted in death.
16. Dr. R. P. Sharma (PW-3) also performed Autopsy on the body of Shabir Khan and gave post-mortem report (Exhibit-P/8-A). In this report he duly noted the external injuries as under :-
1. Incised wound on head at right frontal level to right ear underneath frontal bone fracture.
2. Incised wound over the left parietal region 4, 0.5" x bone deep.
3. One lacerated wound over the occipital region 0.5" x 0.25" x 0.25".
4. Stab injury on the right side chest 1" x 0.25" x 0.25".
5. Stab injury on the right side chest 1" x 0.5" x deep upto lung.
6. Incised wound on left shoulder 2, 0.5" x 0.5" x 0.5".
7. Incised wound on right arm 0.5" x 0.5" x 0.5".
8. Incised wound on right arm 1" x 0.25" x 0.25".
17. The Autopsy Surgeon opined that on account of grievous injury to vital parts i.e. head and chest caused excessive hemorrhage which resulted in coma and death. Cause of death was Syncope.
18. Dr. M. K. Vashistha (PW-5), the Medical Specialist at Biaora, examined Ashfaq (PW-2) and prepared the report (Exhibit-P/10), according to which, he had sustained four injuries as under :-
12
Cr.A. No.990/2011 & Cr.A. No.197/2013
1. Incised wound 1 x 1/6 x 1/6 cm right side of the neck.
2. One bruise red 3 x 1 cm on the left arm.
3. Patient had complained of pain in the left leg but there was no external injury.
4. Abrasion on hip size 0.5 x 0.5 cm. The injuries were simple.
19. Anees (PW-1), Ashfaq (PW-2) and Usman Ali (PW-4) all have stated that appellants Pappu @ Babboo @ Kala S/o Chhote Khan and Rahis S/o Mehboob both were present on the spot at the time of incident. Admittedly, Ashfaq sustained injuries as mentioned in para-18 during the incident and his presence on the spot at the time of incident cannot be doubted. Ashfaq (PW-2) specifically deposed that after hearing the screaming of his father Chand Khan, when he alongwith his brother Shabir reached the spot, he saw appellant Rahis S/o Mehboob assaulting Chand Khan by sword. He further deposed that he also saw the appellant Pappu @ Babboo @ Kala assaulting Chand Khan by lathi.
20. Anees @ Annu (PW-1) and Usman Ali (PW-4), whose presence on the spot at the time of incident had already been found proved by this Court as well as by the Hon'ble Apex Court while deciding the criminal appeals filed by co-accused persons, have supported the aforesaid statements of Ashfaq that appellant Rahis S/o Mehboob and Pappu @ Babboo @ Kala assaulted Chand Khan by sword and lathi respectively. Their aforesaid statements also find support from Dehati Nalishi Report (Exhibit-P/1) lodged just after the 13 Cr.A. No.990/2011 & Cr.A. No.197/2013 incident, wherein it is specifically mentioned that appellants Rahis S/o Mehboob and Pappu @ Babboo @ Kala S/o Chhote Khan assaulted Chand Khan by sword and lathi respectively.
21. Dr. R. P. Sharma (PW-3) in his autopsy report (Exhibit-P/7A), as mentioned in para-15, stated that four incised wound, one lacerated wound and one stab wound was found on the dead body of Chand Khan. He deposed that incised wounds found on his body were caused by hard and sharp edged object, while lacerated wound found on his body was caused by hard and blunt object. He in para-13 of his cross-examination also deposed that his injury Nos.3 & 5 were caused by a weapon like sword. He in para-15 of his cross- examination also deposed that his injury No.6 was caused by a weapon like lathi. Nothing has been extracted during his cross-examination, on the basis of which his aforesaid statements can be doubted.
22. It has been argued on behalf of appellant Rahis S/o Mehboob that Dr. R. P. Sharma (PW-3), in para-13 of his statement deposed that injury No. 3 & 5 found on the body of deceased Chand Khan were likely to be caused by swords (Articles A, B & C), therefore, the same cannot be said to be caused by the sword (Article-U), which is said to be seized from the possession of the appellant, as per seizure memo (Exhibit-P/69), which does not bear the signature of the appellant. Dr. R. P. Sharma (PW-3) only deposed that the injuries found on the deceased's body were likely to be caused by weapon like 14 Cr.A. No.990/2011 & Cr.A. No.197/2013 swords (Articles A, B & C). He no where deposed that the said injuries were caused only by the above swords. All the eye-witnesses specifically deposed that appellant Rahis @ Mehboob was having a sword at the time of incident and he assaulted deceased Chand Khan by sword therefore, all the above arguments advanced by learned counsel for the appellant Rahis @ Mehboob are not acceptable.
23. It has also been argued on behalf of appellant Rahis S/o Mehboob that appellant was not present on the spot and was doing his job of conductor on the bus of Purohit Bus Services as stated by defense witnesses Bashir Khan (DW-5), Manohar (DW-6) and Banti Saxena (DW-7). In this regard, it is pertinent to mention here that during cross-examination of Anees (PW-1), no where it has been suggested that appellant was present somewhere else at the time of incident. During cross-examination of Ashfaq (PW-2) and Usman Ali (PW-4), it has been suggested on behalf of him that at the time of incident, he was doing his job of booking agent at bus stand Sarangpur, while defense witnesses deposed that at that time, he was doing job of conductor on the bus of Purohit Bus Services. As the defenses taken by him are contradictory about the fact that where he was present at the time of incident, then argument with regard to his absence on the spot at the time of incident is also not acceptable.
24. It has also been argued on behalf of the appellants that there was no prior meeting of mind to assault Shabir as has been reflected from the 15 Cr.A. No.990/2011 & Cr.A. No.197/2013 prosecution evidence. Therefore, findings given by learned Trial Court convicting the appellants with the aid of Section 34 of IPC for death of Shabir and injury to Ashfaq is unsustainable as in the instance case, Section 34 of IPC cannot be invoked, reliance is placed on judgement reported in Ezajhussain Sabdarhussain & State of Gujarat (Supra). In this regard observations made by the Hon'ble Apex Court during pre-appreciation of evidence with regard to co-accused persons of this matter in Abdul Sayeed vs. State of Madhya Pradesh, Rafique vs. State of Madhya Pradesh and Rais Alias Toun & others vs. State of Madhya Pradesh, 2010 (10) SCC 259 are relevant, which are as under :-
Section 34 IPC
48. The aforesaid conclusion takes us to the issue raised by the appellants as to whether appellants could be convicted with the aid of Section 34 IPC.
49. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the "common intention" to commit the offence.
The phrase "common intention" implies a pre-arranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the "same intention" or "similar intention" or "common object". The persons having similar intention which is not the result of the pre- arranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC. (See Mohan Singh HYPERLINK "https://indiankanoon.org/doc/60788/"& HYPERLINK 16 Cr.A. No.990/2011 & Cr.A. No.197/2013 "https://indiankanoon.org/doc/60788/" Anr. v. State of Punjab, AIR 1963 SC 174).
50. The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this Section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention. (vide :Krishnan HYPERLINK "https://indiankanoon.org/doc/1897714/"& HYPERLINK "https://indiankanoon.org/doc/1897714/" Anr. v. State of Kerala, (1996) 10 SCC 508; and Harbans Kaur HYPERLINK "https://indiankanoon.org/doc/1534452/"& HYPERLINK "https://indiankanoon.org/doc/1534452/" Anr. v. State of Haryana, (2005) 9 SCC 195).
51. Undoubtedly, the ingredients of Section 34, i.e., that the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. (Vide: Hamlet alias Sasi HYPERLINK "https://indiankanoon.org/doc/1148675/"& HYPERLINK "https://indiankanoon.org/doc/1148675/" Ors. v. State of Kerala, (2003) 10 SCC 108; Pichai alias Pichandi HYPERLINK "https://indiankanoon.org/doc/1860739/"& HYPERLINK "https://indiankanoon.org/doc/1860739/" Ors. v. State of Tamil Nadu, (2005) 10 SCC 505; and Bishna alias Bhiswadeb Mahato HYPERLINK "https://indiankanoon.org/doc/1279400/"& HYPERLINK "https://indiankanoon.org/doc/1279400/" Ors. v. State of West Bengal, (2005) 12 SCC 657).
52. In Gopi Nath @ Jhallar v. State of U.P., (2001) 6 SCC 620, this court observed as under:
"8.....Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action -- be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-17
Cr.A. No.990/2011 & Cr.A. No.197/2013 arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
53. In Krishnan and Anr. v. State represented by Inspector of Police, (2003) 7 SCC 56, this court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard and fast rule can be made out regarding applicability or non-applicability of Section 34.
54. In Girija Shankar v. State of U.P., (2004) 3 SCC 793, it is observed that Section 34 has been enacted to elucidate the principle of joint liability of a criminal act:
"9. 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. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." [Emphasis added] (Emphasis added)
55. In Virendra Singh v. State of Madhya Pradesh, JT 2010 (8) SC 319, this Court observed that:
"42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a pre-arranged and pre-meditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the 18 Cr.A. No.990/2011 & Cr.A. No.197/2013 prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
56. Section 34 can be invoked even in those cases where some of the co- accused may be acquitted provided, it can be proved either by direct evidence or inference that the accused and the others have committed an offence in pursuance of the common intention of the group. (vide: Prabhu Babaji v. State of Bombay, AIR 1956 SC 51).
57. Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by each of them. In the absence of common intention, the criminal liability of a member of the group might differ according to the mode of the individual's participation in the act. Common intention means that each member of the group is aware of the act to be committed.
58. In view of the aforesaid discussion, we are of the considered opinion that the High Court has rightly proceeded in the matter while setting aside the conviction of the appellants under Sections 147/148 IPC and convicting them with the aid of Section 34 IPC.
25. In the present case, from the evidence produced on record, it is apparent that during the incident, Shabir sustained grievous injuries on vital part of his body i.e. head and chest, which caused excessive hemorrhage resulting in coma and death, as mentioned in the post-mortem report (Exhibit-P/8A), while Ashfaq sustained injuries caused by hard and sharp object, as mentioned in his MLC report (Exhibit-P/10). Dehati Nalishi (Exhibit-P/1) of the offence was lodged promptly as the place of occurrence was in close proximity of police 19 Cr.A. No.990/2011 & Cr.A. No.197/2013 chowki and the appellants alongwith other co-accused persons had been named therein. There had been an injured witness. Prosecution has explained the motive that the appellants alongwith other co-accused persons did not like the intervention of Chand Khan taking side of Kamlabai, who had been molested by persons of appellants' party. Several hours after making of the complaint by Chand Khan in that incident, the appellants attacked Chand Khan with motive in a pre-planned manner armed with deadly weapons and caused injuries. Shabir S/o Chand Khan when came to rescue his father was also done away with. In the incident, Ashfaq (PW-2) also got injured. Learned Trial Court, after appreciating the evidence on record rightly came to the conclusion that appellants alongwith other co-accused persons were responsible for the said offences. The testimony of these witnesses had been subjected to searching cross-examination, but nothing has been brought on record to discredit the statement of either of the eye-witnesses.
26. In view of the above and also the observations made by the Apex Court during pre-appreciation of evidence with regard to co-accused persons of the case, we are of the view that the impugned judgements does not warrant any interference and learned Trial Courts have not committed any mistake, while convicting the appellants under Sections 302/34 and 324/34 of the IPC. Hence, the impugned judgements of conviction and order of sentence dated 22.07.2011 and 31.12.2012 passed by learned Trial Courts are hereby 20 Cr.A. No.990/2011 & Cr.A. No.197/2013 affirmed. Accordingly, both these appeals filed on behalf of the appellants Pappu @ Babboo @ Kala S/o Chhote Khan and Rahis S/o Mehboob are hereby dismissed.
27. The Registry is directed to send back the Trial Court record forthwith alongwith copy of this judgement.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
gp
GEETA
Digitally signed by GEETA PRAMOD
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb325 01850a4984b5b63f6d7a38, PRAMOD pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE3874 D434, serialNumber=41554F8E701AEEB833278B4FDD900CBED72 CCF299EA61E33BBE6175289BA0390, cn=GEETA PRAMOD Date: 2022.07.13 16:33:42 +05'30'