Chattisgarh High Court
Prakash @ Monta vs State Of Chhattisgarh on 30 January, 2023
Page 1 of 9
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 104 of 2005
1. Raju @ Rajendra Kumar S/o Govind Prasad R/o Village Janjgir,
Police Station Janjgir District Janjgir Champa Chhattisgarh,
District : Janjgir-Champa, Chhattisgarh
2. (Deleted) Dilip Yadav As Per Honble Court Of Dated 28-01-2020
3. Chheme @ Anil Kumar S/o Sunhar Lal R/o Village Janjgir, Police
Station Janjgir District Janjgir Champa Chhattisgarh, District :
Janjgir-Champa, Chhattisgarh
---- Appellants
Versus
State Of Chhattisgarh Through Police Station Janjgir District Janjgir
Champa Chhattisgarh, District : Janjgir-Champa, Chhattisgarh
---- Respondent
CRA No. 142 of 2005
Prakash @ Monta S/o Shri Shiv Pandey, R/o Janjgir, Police Station
Janjgir District Janjgir Champa Chhattisgarh, District : Janjgir-
Champa, Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through Police Station Janjgir District Janjgir
Champa Chhattisgarh, District : Janjgir-Champa, Chhattisgarh
---- Respondent
For Appellants : Shri Ravindra Sharma, Advocate
For Respondent : Shri R.M. Solapurkar, G.A.
Hon'ble Shri Justice Narendra Kumar Vyas
Judgment on Board
30.01.2023
1. Since both the appeals arising out of same crime number and
similar facts, they are being heard analogously and are being
disposed off by this common judgment.
2. The appellants by way of these appeals have challenged the
judgment dated 29.01.2005 passed by the Additional Sessions
Judge, Janjgir (CG) in Sessions Trial No. 331/2004 whereby and
whereunder, he has convicted and sentenced the appellants as
under :-
Conviction u/S. Sentence RI. Fine In default of
payment of fine
341 Indian Penal - Rs.400/- 1 month RI
Code
326/34 Indian 5 Years Rs.500/- 1 month RI
Penal Code
333/34 Indian 5 Years Rs.500/- 1 month RI
Penal Code
Apart from the above sentences appellant Raju @ Rajendra
Kumar has been convicted as under also :-
25(1) B of the 1 Year Rs.500/- 1 month RI
Arms Act
3. In brief, the prosecution story is that on 16.04.2004 at about
11:30 p.m. the victim Ramraj Pandey who was constable in the
Reserved Police Line and posted as Treasurer Guard was going
to join his duty. The appellants were abusing to each other, the
victim prevented them, on which, the appellants started abusing
him, threatening him and with common intention to kill, assaulted
him. Appellant Raju assaulted the victim with Khukhri and
appellant Prakash @ Monta assaulted him with stick. Other
appellants assaulted him with fists. When Suresh Sharma and
Puniram Yadav came to the place of incident, the appellants left
the place of occurrence. The case of the prosecution is that if
Suresh Sharma and Puniram Yadav have not come to intervene
them, they would definetly have killed the victim. On the basis of
complaint, crime was registered for investigation and after
investigation final report was produced before the trial Court for
the offence punishable under Sections 341, 307, 294 333 of the
IPC to all the appellants and also Section 25 of the Arms Act to
appellant Raju @ Rajendra. The appellants abjured the charges
and faced the trial.
4. To bring home the guilt of the appellants, the prosecution
examined the witnesses namely PW/1 Suresh Sharma, PW/2
Puniram Yadav, PW/3 Ramraj Pandey, PW/4 Gyanendra Singh,
PW/5 Harprasad Pandey, PW/6 Dr. Smt. Rama Ghosh, PW/7
Shivlal Rathore, Patwari who has prepared Najri Naksa and
PW/8 J.L. Lakda, Inspector and exhibited Statement of PW/1
Suresh Sharma as Ex.P/1, FIR Ex.P/2, Ex.P/3 Memorandum
under Section 27 of the Evidence Act, Ex.P/4 Property Seizure
Memo of Stick, Ex.P/5 Memorandum under Section 27 of the
Evidence Act, Ex.P/6 Seizure Memo of Khukhri, Ex.P/7
information to CGM, Ex.P/8 and 9 Arrest Memo, Ex. P/10
seeking information about Bed Head Ticket, Ex.P/11 Information
about Bed Head Ticket, Ex.P/12 OPD report, Ex.P/13 Medical
Examination Report, Ex.P/14 Seeking information from Hospital
about the injury sutained by the victim, Ex.P/15 Najri Naksa,
Ex.P/16 information with regard to injury sustained by the victim,
Ex.P/17 and Ex.P/18 arrest memo. Statement of the accused
were recorded under 313 Cr.P.C. The appellants did not
examine any defence witnesses but exhibited statement of PW/3
which was recorded under Section 161 Cr.P.C. as Ex.D/1 in their
defence.
5. The prosecution star witness is PW/3 Ramraj Pandey, the victim
who in the examination in chief has stated that the accused were
abusing to each other, he prevented them, thereafter they started
abusing him, he has stated that appellant Raju assaulted him
with Khukhri on right side of his head, accused Monta assaulted
him with stick on right wrist, right leg and below knee. Accused
Nankun and Chheme started assaulting him by hands and fists.
Thereafter, he fell down, his head started bleeding. He has also
stated that during assault the accused were shouting that they
will kill him. The witness was cross-examined by the appellants
where he has stated that Prakash @ Monta has assaulted him
on the wrist of righ hand, right thigh and 8-9 times hit him below
knee. His right hand bone got fractured but there was no fracture
in legs.
6. The prosecution to prove its case examined PW/6 Dr. Smt.
Rama Ghosh who has described the injuries sustained by the
victim which reads as under :-
1 + balkbZTM maM flj ds nkfgus iSjkbZVy cksu ij yxHkx 3 ls 4 ls0 eh0 yack vkSj
nkfgus dku ds mij 5x1 ls0 eh0 xgjkbZ mldh Ldhy ,aM isf'k;k] flj dh
gM~Mh fn[kkbZ ns jgh Fkh] mldh ekftZu fDy;j Fks] rktk [kwu fudy jgk Fkk ;s
pksV yxHkx 2&3 ?kaVs iqjkuh Fkh] /kkjnkj gfFk;kj ls pksV igqpkbZ xbZ Fkh rFkk
xaHkhj Lo:i dh FkhA
2- vfxze Hkqtk esa balkbZTM maM Fkk tks fd pkj LFkkuksa ij pksVsa Fkh] tks pkjksa 1 ls +2
ls + eh + yach o [email protected] ls +eh + pkSM+h Fkh vkSj peM+h ds eksVkbZ dh xgjkbZ rd Fkh
ftuesa rktk jDr L=ko gks jgk FkkA
3- ysQ~V ,ady TokbZaV ds ikl 2 ls +eh + yack vkSj 1 ls +eh + pkSM+k balkbZTM maM Fkk]
nkfgus iSj esa f'ku cksu ij Hkh bZlkbZTM maM Fkk tks 2 ls +eh + yack o 1 ls +eh +
pkSM+k Fkk ;s lHkh pksVsa 2 ls 3 ?kaVs iqjkuh Fkh rFkk /kkjnkj gFkh;kj ls igaqpk;h xbZ
FkhA
7. PW/6 Dr. Smt. Rama Ghosh has stated that except injury
sustained on head, all the injuries were simple in nature and can
be cured within 7-8 days if no other complications arise. The
medical report is Ex.P/13. She has also stated that no bone of
the victim was fractured, therefore, she has not given opinion for
X-ray. In cross-examination she has stated that injuries
sustained on hands and legs were simple in nature which can be
caused on fell down also.
8. The learned trial Court after appreciating evidence and material
on record, recorded its finding that injuries sustained by the
victim were grievous in nature, therefore the trial Court
convicted and sentenced the appellants as above.
9. Learned counsel for the appellants would submit that during
pendency of the appeal, Raju died in year 2006 and Dilip Yadav
died in year 2008. Accordingly, so far as appellants Raju and
Dilip Yadav are concerned, the appeal is abated against them.
Now the appeal is confined to only appellants Chheme @ Anil
Kumar and Prakash @ Monta.
10. Learned counsel for the appellants would submit that the victim
has categorically stated that Raju has assaulted him by Khukhri,
therefore, the main allegation is levelled against appellant Raju
who has expired, therefore, offence under Section 326 is not
made out. From the evidence of the Doctor it is quite vivid that
except injury sustained on the head, all the other injuries
sustained by the victim are simple in nature, therefore, offence
under Section 333 of the IPC is also not made out, and at the
best, offence under Section 332 of the IPC can be made out.
11. Learned counsel for the appellants would further submit that
from the evidence and materials on record it is quite apparent
that offence under Section 324/34 is also not made out against
the appellants as there was no common intention between co-
perpetrators and all of a sudden the accused Raju who was
having Khukhri has assaulted the victim, therefore, there was no
prearranged or hatched plan for considerable time before the
criminal act was performed. He would further submit that from
the evidence of the victim, it is quite vivid that there was no
previous dispute between the appellant and the victim. He has
admitted that the accused were abusing to each other, when he
prevented them, then they abused and assaulted him. There
was no pre intention to assault. As such there was no common
intention, meeting of mind to assault the victim, therefore, he
would submit that offence under Section 324/34 of the IPC and
Section 333/34 are not made out against he present appellants.
He would further submit that during the trial Prakash @ Monta
remained in jail for 1 month and 28 days and after conviction 82
days as such he has remained in jail for 160 days i.e. about 5½
months and appellant Chheme remained in jail during trial for 7
days and after conviction for 3 months and 15 days as such he
remained in jail for 3 months and 21 days. He would further
submit that the fine amount awarded by the learned trial Court
has already been deposited. He would further submit that the
appellants are regularly appearing before the trial Court, they
have never misused the liberty granted to them and further no
any other criminal cases has been registered against them,
therefore, he would pray that the ends of justices would be
served the sentence awarded to the appellants is reduced to the
period already undergone by them.
12. On the other hand learned counsel for the State opposing the
submission would submit that the learned trial Court after
appreciating the evidence and material on record has rightly
convicted the appellant, which does not warrant interference and
would pray for dismissal of the appeal.
13. I have heard learned counsel for the appellants and the State
and perused the record of the trial Court with utmost satisfaction.
14. The victim is the best witness of the incident that took place and
in the present case the victim has categorically stated that Raju
assaulted him with Khukhri on right side of his head and
accused Monta assaulted him with the stick on wrist, right leg
and below knees. Accused Nanku and Cheme assaulted him by
hands and fists, thus, it is clearly proved by the prosecution that
Raju has committed the offence under Section 324 of the IPC
and considering the law laid down by the Hon'ble Supreme Court
in case of State of U.P. Vs. Naresh and Others 1 wherein in
the Hon'ble Supreme Court has held in paragraph 27 as under :-
"27. The evidence of an injured witness must be given
due weightage being a stamped witness, thus, his
presence cannot be doubted. His statement is
generally considered to be very reliable and it is
unlikely that he has spared the actual assailant in
order to falsely implicate someone else. The
testimony of an injured witness has its own
relevancy and efficacy as he has sustained injuries
at the time and place of occurrence and this lends
support to his testimony that he was present during
the occurrence. Thus, the testimony of an injured
witness is accorded a special status in law. The
witness would not like or want to let his actual
assailant go unpunished merely to implicate a third
person falsely for the commission of the offence.
Thus, the evidence of the injured witness should be
relied upon unless there are grounds for the
rejection of his evidence on the basis of major
contradictions and discrepancies therein."
15. In the light of the law laid down by the Hon'ble Supreme Court
this Court has examined the materials placed on record and
from the evidence it is quite vivid that the victim has categorically
stated that accused Raju has assaulted him with Khukhri and
Monta has assaulted him with stick and no fracture has been
caused. This fact has been supported by the statement of the
doctor also, therefore, offence under Section 324 of the IPC is
1 2011(4) SCC 32
not made out against the appellants namely Chhemme and
Prakash. Similarly, the offence under Section 333 IPC causing
grievous hurt to the public servant is also not made out.
16. Now, this Court to see whether offence under Section 34 is made
out the against the appellants Chheme and Prakash. From the
evidence brought on record by the prosecution it is quite vivid
that Raju has assaulted victim with Khukhri all of a sudden and
prosecution has not brought any evidence on record to establish
that there was prearranged and hatched plan to attack the
victim and there was no common intension or prior meeting of
minds which is paramount consideration to involve accused for
convicting them under Section 324/34 or 333/34 of the IPC.
Section 34 of the IPC has come up for consideration before the
Hon'ble Supreme Court in case of Krishnamurthy @ Gunodu
and Others vs State of Karnataka Cra NO. 288 /2022 dated
16.02.2022 wherein the Hon'ble Supreme Court has held from
paragraphs 18 to 21 as under :-
18. Section 34 IPC makes a co-perpetrator, who had participated in
the offence, equally liable on the principle of joint liability. For
Section 34 to apply there should be common intention between
the co-perpetrators, which means that there should be community
of purpose and common design or pre-arranged plan. However,
this does not mean that co-perpetrators should have engaged in
any discussion, agreement or valuation. For Section 34 to apply, it
is not necessary that the plan should be pre-arranged or hatched
for a considerable time before the criminal act is performed.
Common intention can be formed just a minute before the actual
act happens. Common intention is necessarily a psychological fact
as it requires prior meeting of minds. In such cases, direct
evidence normally will not be available and in most cases,
whether or not there exists a common intention has to be
determined by drawing inference from the facts proved. This
requires an inquiry into the antecedents, conduct of the co-
participants or perpetrators at the time and after the occurrence.
The manner in which the accused arrived, mounted the attack,
nature and type of injuries inflicted, the weapon used, conduct or
acts of the co-assailants/perpetrators, object and purpose behind
the occurrence or the attack etc. are all relevant facts from which
inference has to be drawn to arrive at a conclusion whether or not
the ingredients of Section 34 IPC are satisfied. We must
remember that Section 34 IPC comes into operation against the
co-perpetrators because they have not committed the principal or
main act, which is undertaken/performed or is attributed to the
main culprit or perpetrator. Where an accused is the main or final
perpetrator, resort to Section 34 IPC is not necessary as the said
perpetrator is himself individually liable for having caused the
injury/offence. A person is liable for his own acts. Section 34 or the
principle of common intention is invoked to implicate and fasten
joint liability on other co-participants. Further, the expression/term
"criminal act" in Section 34 IPC refers to the physical act, which
has been done by the co-perpetrators/participants as distinct from
the effect, result or consequence. In other words, expression
"criminal act" referred to in Section 34 IPC is different from
"offence". For example, if A and B strike Lathi at X, the criminal act
is of striking lathis, whereas the offence committed may be of
murder, culpable homicide or simple or grievous injuries. The
expression "common intention" should also not be confused with
"intention" or "mens rea" as an essential ingredient of several
offences under the IPC. Intention may be an ingredient of an
offence and this is a personal matter. For some offences, mental
intention is not a requirement but knowledge is sufficient and
constitutes necessary mens rea. Section 34 IPC can be invoked
for the said offence also [refer Afrahim Sheikh and Ors. (supra)].
Common intention is common design or common intent, which is
akin to motive or object. It is the reason or purpose behind doing
of all acts by the individual participant forming the criminal act. In
some cases, intention, which is ingredient of the offence, may be
identical with the common intention of the co-perpetrators, but this
is not mandatory.
19. Section 34 IPC also uses the expression "act in furtherance of
common intention". Therefore, in each case when Section 34 is
invoked, it is necessary to examine whether the criminal offence
charged was done in furtherance of the common intention of the
participator. If the criminal offence is distinctly remote and
unconnected with the common intention, Section 34 would not be
applicable. However, if the criminal offence done or performed
was attributable or was primarily connected or was a known or
reasonably possible outcome of the preconcert/contemporaneous
engagement or a manifestation of the mutual consent for carrying
out common purpose, it will fall within the scope and ambit of the
act done in furtherance of common intention. Thus, the word
"furtherance" propounds a wide scope but should not be
expanded beyond the intent and purpose of the statute. Russell
on Crime, (10th edition page 557), while examining the word
"furtherance" had stated that it refers to "the action of helping
forward" and "it indicates some kind of aid or assistance producing
an effect in the future" and that "any act may be regarded as done
in furtherance of the ultimate felony if it is a step intentionally
taken for the purpose of effecting that felony." An act which is
extraneous to the common intention or is done in opposition to it
and is not required to be done at all for carrying out the common
intention, cannot be said to be in furtherance of common intention
[refer judgment of R.P. Sethi J. in Suresh (supra)].
20. When we apply the aforesaid principles relating to applicability of
Section 34 IPC to the facts of the present case, we feel that
Thimmappa and Gopala are entitled to the benefit of doubt on the
ground that it cannot be with certainty held that they had common
intention, viz. the injuries inflicted by Krishnamurthy on
Venkatarama after he had fallen down. They did not participate
thereafter by physically assaulting or causing any injury to
Venkatarama. They did not facilitate and help Krishnamurthy in
the assault he perpetuated. We have no grounds to accept that
they could have preconceived the brutal assault by Krishnamurthy
who had put his knees on the neck and jumped on the chest of the
deceased to cause the injuries resulting in his death. We cannot
hold that these two accused could have premeditated the result
which ensued when Krishnamurthy behaved and acted in the
manner he did. Clearly, they had not joined Krishnamurthy when
he had acted and have stood by. There is nothing to indicate that
their acts, that is, holding the hands and pulling the legs of the
deceased making him fall down, were done in furtherance of the
common intention that Krishnamurthy would thereupon put his leg
on the neck of the deceased, crushed his chest and fracture the
ribs. We would, in favour of the appellants Thimmappa and
Gopala, hold that their acts cannot be primarily connected with the
violence perpetuated by Krishnamurthy. Given the acts attributed
to Thimmappa and Gopala, the assault by Krishnamurthy and the
resultant outcome were unexpected. We are also not prepared to
hold that these two accused should have known the final outcome,
or it was known to them, or it was a reasonably possible outcome
of the preconcert/ contemporaneous engagement or a
manifestation of mutual consent for carrying out a common
purpose. We, therefore, would not hold them guilty for the offence
under Section 300 or even Section 299 of the IPC on the ground
that they shared common intention as understood on application
of Section 34 IPC."
17.Consequently this Court converts conviction of the appellants
Chhemme and Prakash under Sections 323/34, 332/34 and 341
IPC and accordingly considering the entirety of the facts also
considering the fact that Prakash @ Monta remained in jail for
160 days i.e. about 5½ months and appellant Chheme
remained in jail for 112 about 3 months and 21 days, I am
inclined to sentence them to the period already undergone by
them while enhancing fine amount to tune of Rs. 1400/- for
offence punishable under Section 341 Indian Penal Code, Rs.
2000/- for offence punishable under Section 323 Indian Penal
Code and Rs. 1000/- for offence punishable under Section 332
Indian Penal Code to each appellant. The fine amount which has
already been paid will be adjusted. The appellants are directed
to deposit the enhanced fine amount within three months from
today.
18. Accordingly, the instant appeals are partly allowed. The
judgment and conviction passed by the learned trial Court is
modified to the above extent.
19.The appellants are reported to be on bail. Their bail bonds stand
discharged in view of the provisions of Section 437-A, Cr.P.C.
Sd-
(Narendra Kumar Vyas)
Judge
kishore
