Ravi Kumar & Ors vs The State Of M.P. on 5 March, 2018

[Cites 18, Cited by 51]

Madhya Pradesh High Court

Ravi Kumar & Ors vs The State Of M.P. on 5 March, 2018

1. These two appeals have been filed against common judgment dated 04.12.1995 passed in Sessions Trial No.158 of 1994 by the Court of IVth Additional Sessions Judge, Jabalpur. Trial Court held the appellant Vijay Chakrawarti [Cr. Appeal No.1751/993] guilty for commission of offence punishable under Section 302/34 of IPC. Rest of the appellants [Cr.Appeal No.1663 of 1995] held guilty for commission of offence punishable under Section 302 of IPC and awarded sentence of Life.

2. Prosecution story, in brief is that, on 05.12.1993, at around 8 O'Clock in the night, deceased Chintu @ Rajkumar was watching a movie at his

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house. The accused persons came there and they had taken the deceased with them. After hearing cry of Chintu [since deceased], persons came out and they had seen that accused Ravi Choudhary had caught hold the deceased and appellant Vijay Chakrawarti inflicted a blow by knife at the chest of the deceased, he fell down.

Chintu [since deceased] was taken to the doctor where he was declared dead. Report of the incident was lodged at the Police Station. Police conducted investigation and filed charge-sheet.

Appellants abjured the guilt and pleaded innocence. Trial Court held the appellants guilty and awarded sentence of Life.

3. Learned counsel for the appellants has submitted that trial Court has committed an error in convicting the appellants under Section 302 of IPC. There is no sufficient evidence to held the appellants guilty for the offence beyond reasonable doubt. In alternate, learned counsel has further submitted that one of the co-

accused Ram Milan also received injury. The prosecution did not explain the injury suffered by Ram Milan. Incident had happened all of sudden. There was quarrel between both the parties hence, the offence committed by appellant Vijay would fall under Section 304 Part-I of IPC.

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4. Learned Government Advocate has submitted that the prosecution has established the guilt of the appellants and the trial Court has rightly convicted the appellants and awarded proper sentence.

5. (PW-2) Basorilal, deposed that neighbour had told me that accused/appellants had called the deceased and thereafter Vijay inflicted a blow on the chest of deceased. Report was lodged at the Police Station Ranjhi, Jabalpur [Ex.P-2] and I singed the report.

Police prepared spot map [Ex.P-3] and also seized plain earth and red earth vide seizure memo Ex.P-4. I had not seen the fight [marpeet] when the incident had happened then, I came out from my house.

6. (PW-3) Pramod is an eye witness. He deposed that around 6 O'clock in the evening, there was a quarrel between deceased and accused persons. At around 8.30 in the night, accused persons came to the house, they had called the deceased and thereafter, I heard the cry of deceased and I had seen that Vijay, had inflicted blow of knife at the chest of deceased. Other three accused persons were also there.

Ram Milan was standing and Bale and Ravi both had caught hold the deceased. Thereafter, the accused persons ran away from the spot. We had taken the deceased to the Hospital where doctor

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declared him dead. Police seized knife from the accused vide seizure memo Ex-P-8. In para 12 of his cross-examination, he said that portion of the statement that accused persons had called the deceased and they had taken him with them, has not been mentioned in my police statement Ex.P-1. It is an omission. In para 13, he admitted the fact that accused Ram Milan also suffered injury on his head, he fell down. When he was running away from the spot then he received injury. I had seen that blood was oozing from his head. He denied the fact that I had inflicted blow of lathi on the head of Ram Milan.

In para 14, he admitted the fact that he had lathi with him. He further deposed that Chintu [since deceased] also inflicted blows of fests. He was doing boxing. I had catch hold him.

7. (PW-4) Nandkishore and (PW-5) Ramlal declared hostile.

(PW-6) Guddu Thakur also declared hostile. He denied the fact that he had seen that accused persons had been beating the deceased.

8. (PW-8) Dr. A.K. Jain, performed the autopsy of the deceased.

He deposed that I noticed following injuries on the person of the body of deceased.

"(1) Stab wound at the chest near left collar bone of 5 th rib.

1 1/2" x 1/2" .

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(2) Stab wound in left leg 1/2" x 1/4" x 1/8". (3) One lacerated wound on the face 1/4" x1/4"x1/4".

Due to stab wound on the chest, the rib was cut and there was injury on heart. Deceased was died due to injuries suffered by him on the chest and the injury was antemortem in nature. It was caused by hard and sharp edged weapon i.e. stab wound. Mode of death is homicidal.

9. (PW-7) C.L. Guru, SHO, Police Station Omti, Jabalpur is Investigating Officer, deposed that on 5.12.1993 Basorilal, lodged a report at the Police Station which is [Ex.P-2] merg was registered Ex-P-15. I reached on the spot and prepared map Ex.P-3. I also seized plain earth and red earth from the spot vide seizure memo Ex.P-6, I signed the same. On the memorandum of appellant Vijay, (Ex.P-7) a knife was seized which is Ex.P-8. His cloths were seized vide seizure memo Ex.P-17. Blood stains were found on the cloths.

Thereafter, I recorded the statements of the witnesses.

10. Accused also examined defence witness (DW-1) Rewa Prasad.

He deposed that on 5.12.1993 Bahorilal lodged a report at the Police Station which was recorded in Roznamacha Sanha. Ram Milan also lodged the report. (DW-2) Gulab Singh, who is Head Constable, deposed that I had sent accused Ram Milan for medical examination.

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As per report Ex.D-4, there was a lacerated wound on right temporal region 1" x 1 1/2" on right side of Ram Milan.

11. (PW-3) Pramod is eye witness. He deposed that accused had taken the deceased from his house is an omission to his case diary statement recorded by the police under Section 161 of Cr.P.C. He admitted the fact that accused Ram Milan had also received head injury during incident and he was armed with lathi [wooden stick].

He further deposed in his cross-examination that deceased was also inflicting injuries by fists.

12. From the aforesaid evidence, it is clear that there was a quarrel between appellant and deceased and in that event, one of the accused/appellant Ram Milan received injury. Accused/appellant Vijay inflicted injury by knife.

13. The Apex Court in the matter of Arjun and another Vs. State of Chhatisgarh reported in (2017) 3 SCC 247, has held as under in regard to applicability of exception (4) of Section 300 of IPC :

"19. The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which

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resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.

20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of Chandigarh (1989) 2 SCC 217, it has been explained as under:-

"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."

21. Further in the case of Arumugam vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:-

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"9. ....... "18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."

22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre- meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.

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14. In the present case, there was a sudden fight and there was no premeditation. Act was done in a heat of passion. Appellant Vijay inflicted a below by knife which was vital. Other injuries were simple in nature hence, he had not taken undue advantage or acted in a cruel manner. In such circumstances, the offence committed by the appellant Vijay would fall under Section 304 Part-I of IPC.

15. The next question is whether the conviction of appellants namely; Ravi Kumar, Ram Milan and Bale @ Balkishan with the aid of Section 34 of IPC is proper or not? The Apex Court in the cases of Vijendra Singh vs State of Uttar Pradesh and Mahendra Singh vs State of Uttar Pradesh, (2017) 11 SCC 129 after considering previous judgments of the Hon'ble Apex Court has held as under in regard to Section 34 of IPC:

"21. In the said case, the Court after analyzing the evidence opined that there is no material from the side of the prosecution to show that the appellant therein had any common intention to eliminate the deceased because the only thing against the appellant therein was that he used to associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the appellant could not be convicted in aid of Section 34 IPC.

22. In this regard, we may usefully refer to a passage from the authority in Pandurang

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and Ors. v. State of Hyderabad, AIR 1955 SC

216. The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that:-

"32. ... It requires a pre-arranged 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 Emperor, AIR 1945 PC 118.

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 pre-arranged 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 Emperor, AIR 1925 PC 1 and Mahbub Shah v. King Emperor (supra). 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".

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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 pre-arranged plan however hastily formed and rudely conceived. But pre- arrangement 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 case) "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)."

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24. In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh (supra). 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

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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 case) "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-Emperor (supra) common intention within the meaning of Section 34 implies a pre-arranged 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 pre- arranged 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 Thakore (supra), a three-Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled thus:-

"7...... Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P., (1975) 4 SCC 247; Maina Singh v. State of Rajasthan, (1976) 2 SCC 827) 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

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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 and Ors. v. State of Bihar, (2003) 1 SCC 268 the Court relying upon the principle laid down in Barendra Kumar Ghosh (supra) 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 and Ors. v. State of Karnataka, (2013) 3 SCC 675 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

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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 : Kirpal and Bhopal v. State of U.P.[16]). In Bharwad Mepa Dana and Anr. v. The State of Bombay[17], 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."

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16. A Constitution Bench of the Hon'ble Apex Court in the case of Mohan Singh and another vs State of Punjab, AIR 1963 SC 174 has held as under in regard to Section 34 of IPC:

"(13). That inevitably takes us to the question as to whether the appellants can be convicted under s.302/34. Like s. 149, section 34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act' in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by s. 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them.

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 a.

34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of s. 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 pre-arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which

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s. 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. It is now well-settled that the common intention required by s. 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. Emperor, 72 Ind App 148 : (AIR 1945 PC 118), common intention within' the meaning of s. 34 implies a pre-arranged 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 pre- arranged 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. What then are the facts and circumstances proved in the present case."

17. The principle of law is that applicability of Section 34 of IPC is a question of fact and is to be asserted from the evidence on record.

Common intention postulates the existence of a prearranged plan and that must mean a prior meeting of minds. The acts may be different; may vary in their character, but, they are all actuated by the same common intention. It implies a prearranged plan and it has to be proved that the criminal act was done in concert pursuant to the prearranged plan. The intention can be developed at the place of occurrence also.

18. In the present case, quarrel had occurred all of a sudden in a heat of passion hence, in our opinion, trial Court has committed an

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error in convicting the appellants Ravi Kumar, Ram Milan and Bale @ Balkishan in Cr. Appeal No.1663/1995.

19. In this view of the matter, the appeal filed by the appellants namely; Ravi Kumar, Ram Milan and Bale @ Balkishan [Cr. Appeal No.1663 of 1995] is hereby allowed. Conviction and sentence awarded by the trial Court is hereby set aside. Appellants are on bail, their bail bonds are hereby discharged.

20. Conviction and sentence of appellant Vijay Chakrawarti [Cr.

Appeal No.1751 of 2005] awarded by the trial Court for commission of offence punishable under Section 302 of IPC is hereby set aside.

Appellant Vijay is convicted for commission of offence punishable under Section 304 Part-I of IPC. He was arrested on 6.12.1993. His sentence was suspended by this Court vide order dated 7.9.2001. He had completed jail sentence near about 10 years including remission hence, appellant is awarded jail sentence as already undergone.

Appellant Vijay is on bail, his bail bonds are hereby discharged.


            `
            (S.K. Gangele)                           (Smt. Anjuli Palo)
             Judge                                         Judge


pb




     Digitally signed by PRASHANT
     BAGJILEWALE
     Date: 2018.03.08 02:08:18 -08'00'

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