Chattisgarh High Court
Poyami Bhima vs State Of Chhattisgarh on 14 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1277 of 2015
1. Poyami Bhima son of Munda, aged about 55 years,
2. Poyami Faganu, son of Poyami Bhima, aged about 23
years,
Both R/o. Village Gangupara, Ward No.16, Bacheli, P.S.
Bacheli, District Dantewada (CG)
Appellants
(In Jail)
Versus
State of Chhattisgarh Through Police Station P.S.
Bacheli, District Dantewada (CG)
Respondent
For Appellants: Mr.Suresh Tandon, Advocate
For Respondent/State: Mr.Soumya Rai, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
(14.6.2022)
Sanjay K. Agrawal, J.
1. Two appellants herein have preferred this criminal
appeal under Section 374(2) of the CrPC calling in
question legality, validity and correctness of the
impugned judgment dated 22.8.2015 passed by the Second
Additional Sessions Judge, Dakshin Bastar Dantewada, by
which two appellants herein have been convicted for
offence under Section 302/34 of the IPC and sentenced
them to undergo imprisonment for life and fine of
Rs.50/, in default of payment of fine to further
undergo rigorous imprisonment for one month each.
2. Case of the prosecution, in brief, is that on 18.9.2013
at about 12 o'clock at night at Gangupara, Ward No.16,
Bacheli the appellants herein in furtherance of their
common intention caused death of Poyami Laxman. It is
undisputed fact that deceased Poyami Laxman was son of
appellant No.1Poyami Bhima and brother of appellant
No.2Poyami Faganu. It is further case of the
prosecution that on 18.9.2013 deceased Poyami Laxman
was sleeping along with his family, in the midnight the
appellants came in the house of Poyami Laxman armed
with axe and suspecting that by witchcraft he is
causing death of his cattles and threatened him to kill
and while the dispute was going on, appellant No.2
Poyami Faganu caught hold of deceased Poyami Laxman
and appellant No.1Poyami Bhima caused stab injury over
right side of the deceased stomach, which was
unsuccessfully attempted to be intervened by
Ku.Sukhmati (PW4), she was pushed, she fell down and
stab injury was caused to deceased Poyami Laxman and
thereafter Poyami Laxman died on the spot and accused
persons absconded from the spot. On the next date i.e.
on 19.9.2013 the matter was reported by the deceased
wife Smt.Kamli (PW1) to the Police Station Bacheli and
Crime No.34/13 for offence under Section 302/34 of the
IPC was registered vide Ex.P2. Merg intimation was
recorded vide Ex.P3. Inquest was conducted by serving
notice vide Ex.P5. Dead body was sent for postmortem
to Community Health Center, Bacheli, where postmortem
was conducted by Dr.K. Goutam (PW8) and submitted his
report vide Ex.P15 in which he opined that cause of
death was hemorrhagic shock due to internal organ
injury (liver) and death was homicidal in nature.
Pursuant to memorandum statement of appellant No.1
Poyami Bhima (Ex.P10), bloodstained axe used in
commission of offence was seized vide Ex.P11.
Bloodstained and plain soil were recovered from the
spot vide Ex.P7. Seized articles were sent for
examination to FSL in which vide Ex.P1 blood was found
on seized axe. The appellant was chargesheeted before
the Judicial Magistrate First Class, Bacheli, who was
committed the case to the Court of Session, Dantewada,
from where the Second Additional Sessions Judge,
Dakshin Bastar Dantewada received the case on transfer
for trial. The accused/appellants abjured the guilt and
entered into defence.
3. In order to bring home the offence, the prosecution
examined as many as 8 witnesses and exhibited 16
documents Exs.P1 to P16. Statements of the
accused/appellants were recorded under Section 313 of
the CrPC in which they denied guilt. However, they
examined none in their defence.
4. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment dated 22.8.2015, convicted the appellants
herein for offence punishable under Section 302 read
with Section 34 of the IPC by recording a finding that
Smt.Kamli (PW1), Ku.Sukmati (PW4) and Ku.Somari
(PW5) have seen the appellants causing axe injury to
the deceased which was duly reported by Smt.Kamli
(PW1) and statements of Ku.Sukmati (PW4) and
Ku.Somari (PW5) (daughters of deceased Poyami Laxman)
have been supported by Fuldhar Kashyap (PW7) and on
memorandum statement of appellant No.1Poyami Bhima
(Ex.P10), bloodstained axe was recovered from him vide
Ex.P11 and on said axe, blood was found and death of
the deceased was homicidal in nature, which has been
called in question in this appeal.
5. Mr.Suresh Tandon, learned counsel appearing for the
appellants, would submit that the prosecution has
failed to prove its case beyond reasonable doubt
against both the appellants. He would further submit
that there is no evidence on record to hold appellant
No.2Poyami Faganu guilty by invoking Section 34 of the
IPC. Neither there is prior meeting of mind nor overt
act has been proved, as such, there is no participation
in offence in question by appellant No.2Poyami Faganu
and even lungi by which the deceased is said to have
been tightened has not been recovered and it has not
been brought on record. As such, there is no evidence
on record against appellant No.2Poyami Faganu for
offence under Section 302/34 of the IPC and his
conviction and sentence are liable to be setaside. He
would also submit that merely on the basis of self
serving statements of Ku.Sukmati (PW4) and Ku.Somari
(PW5) (daughters of deceased Poyami Laxman), who are
interested witnesses, conviction has been recorded,
which is liable to be setaside.
6. On the other hand, Mr.Soumya Rai, learned Panel Lawyer
for the respondent/State, would submit that the
prosecution has able to prove the offence beyond
reasonable doubt by placing legal evidence on record
and the trial Court has rightly convicted the
appellants for offence under Section 302/34 of the IPC,
which is not liable to be interfered with and appeal
being devoid of merit is liable to be dismissed.
7. We have heard learned appearing for the parties,
considered their rival submissions made hereinabove
and also went through the records with utmost
circumspection.
8. The first question for consideration would be, whether
death of deceased Poyami Laxman was homicidal in
nature. The trial Court after considering medical
evidence particularly relying upon statement of medical
expert Dr.K.Goutam (PW8) and taking into consideration
the nature of injuries which the deceased has received
in his stomach and liver came to the conclusion that
death of deceased Poyami Laxman was homicidal in
nature. Considering the nature of injuries received by
deceased Poyami Laxman and statement of Dr.K. Goutam
(PW8) and considering his medical report Ex.P15, we
are of the considered opinion that death of deceased
Poyami Laxman was homicidal in nature. Accordingly, we
affirm that finding.
9. The next question for consideration would be, whether
the trial Court is justified in convicting the
appellants for offence under Section 302/34 of the IPC.
Considering the conviction of the appellants, we will
take one by one.
Conviction of appellant No.1Poyami Bhima:
10. Case of the prosecution as noticed hereinabove is that
appellant No.2Poyami Faganu caught hold of deceased
Poyami Laxman by lungi and it is appellant No.1Poyami
Bhima who has caused axe blow over vital part of body
of deceased Poyami Laxman, by which he suffered
injuries and died instantaneously. Ku.Sukhmati
(daughter of deceased Poyami Laxman) has been examined
on behalf of the prosecution as PW4. In para3, she
has clearly stated that on the fateful day at midnight,
her father came out from urination, she heard noise of
her father, she and her mother came out from house,
then they noticed that both accused persons were
assaulting her father, she tried to snatch axe from
appellant No.1Poyami Bhima, but she was pushed by
appellant No.2Poyami Faganu and appellant No.1Poyami
Bhima caused severe injuries to stomach of the deceased
by which he succumbed to death and thereafter the
appellants absconded from the spot. Her statement has
also been supported by her sister Ku.Somari (PW5).
Nothing has been brought on record to controvert her
statement or impeach her statement. As such, there is
sufficient evidence in the shape of ocular evidence of
Ku.Sonmati (PW4) and Ku.Somari (PW5) that stab injury
was caused by appellant No.1Poyami Bhima. Not only
this, pursuant to memorandum statement of appellant
No.1Poyami Bhima (Ex.P10), bloodstained axe was
recovered from his possession vide Ex.P11 and recovery
has been proved by Baman (PW6) and Fuldhar Kashyap
(PW7) and furthermore, seized bloodstained axe was
sent to FSL for chemical examination and vide Ex.P1
FSL report, blood was found on seized axe. As such,
there is sufficient evidence in the shape of ocular and
medical on record that appellant No.1Poyami Bhima
assaulted deceased Poyami Laxman by axe by which he
suffered grievous injuries and succumbed to death. As
such, conviction of appellant No.1Poyami Bhima for
offence under Section 302 of the IPC is fully
established. We hereby affirm the finding recorded by
the trial Court in this regard.
Conviction of appellant No.2Poyami Faganu:
11. Appellant No.2Poyami Faganu has been convicted with
aid of Section 34 of the IPC, though Smt.Kamli (PW1)
has stated that the appellants were assaulted her
husband by axe, but in para14, she has stated that
when she came out from house, her husband was lying on
floor. In para20, she has stated that she has seen the
appellants herein assaulting by axe, but in para27
again she has stated that on account of darkness, she
could not notice the assailants. Similarly, Ku.Sukmati
(PW4) (daughter of deceased Poyami Laxman) in para3
of her statement has stated that both the accused
persons tightened her father's neck by lungi and
assaulting him and thereafter axe blow was made by
appellant No.1Poyami Bhima, but in para14 of her
crossexamination, she has admitted that such statement
was not made in police statement (Ex.D1). As such,
there is some improvement by this witness so far as
tightening the deceased by lungi by both the accused
persons. Furthermore, lungi which was used in
commission of offence by the appellants has not been
seized by police and has not been produced before the
Court. Similarly the prosecution has shown Ku.Somari
(PW5) to be eyewitness and relied upon as eye
witness, but in para3, she has clearly stated that axe
blow was caused by appellant No.1Poyami Bhima, though
she further stated that other accused person was also
standing on the spot. Apart from that, no seizure has
been made from appellant No.2Poyami Faganu. Except
selfserving statements of Ku.Sukmati (PW4) and
Ku.Somari (PW5), nothing has been brought on record to
connect appellant No.2Poyami Faganu for offence under
Section 302 of the IPC, but with aid of Section 34 of
the IPC, he has been convicted by the learned trial
Court as recorded in paras28 and 29 of the judgment.
12. At this stage, it would be appropriate to notice
Section 34 of the IPC which states as under:
"34. Acts done by several persons in
furtherance of common intention.When 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."
13. Common intention means a preoriented plan and acting
in pursuance to the plan, thus common intension must
exist prior to the commission of the act in a point of
time. (See Shyamal Ghosh v. State of West Bengal1).
14. The burden lies on prosecution to prove that actual
participation of more than one person for commission of
criminal act was done in furtherance of common
intention at a prior concert. (See Mrinal Das v. State
of Tripura2.)
15. If common intention is proved but no overt act is
attributed to the individual accused, section 34 of the
Code will be attracted as essentially it involves
vicarious liability but if participation of the accused
in the crime is proved and common intention is absent,
section 34 cannot be invoked. In other words, it
requires a prearranged plan and presupposes prior
concert. (See Suresh Sankharam Nangare v. State of
Maharashtra3).
16. Reverting to the facts of the present case as noticed
hereinabove and considering the evidence of Ku.Sukhmati
1 AIR 2012 SC 3539
2 (2011) 9 SCC 479
3 2012 (9) JT 116
(PW4) and Ku.Somari (PW5), it is quite vivid that the
prosecution has neither been able to prove prior
concert nor prearranged plan and even no overt act has
been proved by the prosecution so far as appellant
No.2Poyami Faganu is concerned. Merely because
appellant No.2 was present on the spot, even if it is
accepted, then also Section 34 of the IPC cannot be
invoked. As such, in absence of prearranged plan and
further in absence of participation in crime in
question, the finding recorded by the learned trial
Court invoking Section 34 of the IPC to convict
appellant No.2Poyami Faganu under Section 302 of the
IPC is liable to be setaside.
17. In the result, conviction & sentence of appellant No.1
Poyami Bhima under Section 302/34 of the IPC is
maintained and his appeal is dismissed. However,
conviction & sentence of appellant No.2Poyami Faganu
under Section 302/34 of the IPC is setaside and he is
acquitted of the charge under Section 302/34 of the
IPC. His appeal is allowed. He is in jail, he be
released forthwith, if not required in any other case.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/
