Jharkhand High Court
Chedi Goshwami vs The State Of Jharkhand on 25 April, 2025
Author: Ananda Sen
Bench: Ananda Sen
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
............
(Arising out of judgment of conviction dated 19.02.2003 and order of
sentence dated 21.02.2003 passed by Learned Additional District and
Sessions Judge, Fast Track Court No.5, Dhanbad in Sessions Trial
No.97/1996)
Criminal Appeal (D.B.) No.659 of 2003
Chedi Goshwami, resident of village Kalyanpur P.S. Mahuda, District
Dhanbad ... ... ... Appellant(s)
Versus
The State of Jharkhand ... ... ... Respondent(s)
WITH
Criminal Appeal (D.B.) No.286 of 2003
Champa Devi wife of Nand Kishor Goshwami, resident of village Kalyanpur,
P.O. & P.S. Mahuda, District Dhanbad
... ... ... Appellant(s)
Versus
The State of Jharkhand ... ... ... Respondent(s)
PRESENT :
SRI ANANDA SEN, J.
SRI SANJAY KUMAR DWIVEDI, J.
For the Appellant(s) : Mr. Sankalp Goswami, Advocate
For the State : Ms. Nehala Sharmin, Spl. P.P.
JUDGMENT
Reserved on:18.12.2024 Pronounced On:25/04/25
PER ANANDA SEN, J.:
Both these appeals are arising out of a common judgment of conviction
dated 19.02.2003 and order of sentence dated 21.02.2003 passed by Learned
Additional District and Sessions Judge, Fast Track Court No.5, Dhanbad in
Sessions Trial No.97/1996 whereby and whereunder both the appellants have
been convicted under Sections 302/34 of the Indian Penal Code and sentenced
to undergo rigorous imprisonment for life.
2. The First Information Report is at the instance of Satish Dom
(informant) son of Mangru Dom who in his fardbeyan stated that about four to
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five months ago Raju Goswami took her cousin Mina Kumari away on the
pretext of marriage for which a criminal case was also registered. He stated
that after the registration of criminal case relation between the families of Raju
Goswami and her cousin's family was not cordial. On 11.04.1995 at about 5
P.M. Raju Goswami brought her cousin to Kalyanpur and left her in her
paternal home. Next day in the morning at about 6.30 A.M her aunt and uncle
went to the house of Raju Goswami and asked his family members to take her
daughter back. On this they started abusing his uncle and aunt. At about 7 A.M.
in the morning when his uncle and aunt were sitting beside the road, Chedi
Goswami (father of Raju Goswami) was passing from there and some
altercation started among them and Chedi Goswami started beating his uncle
and aunt with his belt. On hearing the alarm few villagers gathered at the spot.
Raju Goswami came with a knife along with Champa Devi. Chedi Goswami
and Champa Devi caught hold of his uncle and aunt respectively and then Raju
Goswami gave knife blow in the chest of his uncle and in the right side of the
ribs of his aunt due to which they died on the spot. After the incidence Raju
Goswami, his father Chedi Goswami and Champa Devi fled from the spot.
3. On the basis of the written report of the informant, Bagmara P.S. Case
No.119 of 1995 was registered on 12.04.1995 against the accused Chedi
Goswami, Raju Goswami, and Champa Devi under Section 302 read with
Section 34 of the Indian Penal Code. Police after investigation found the case
to be true and submitted charge-sheet and thereafter the cognizance was taken
against the appellants and they were put on trial for the offences under Sections
302/34 of the Indian Penal Code.
4. To bring home the charges prosecution has all together produced six
witness and exhibited few documents which are as follows-
Exhibit 1 - Postmortem Report
Exhibit 1/1 - Postmortem Report
Exhibit 2 -Fardbeyan
Exhibit 3 - Formal FIR
Exhibit 4 - Inquest Report
Exhibit 4/A - Inquest Report
P.W.1, Atwari Dom, who is the cousin of the deceased, in his deposition
stated that on the fateful day at 6 A.M. in the morning his uncle and aunt were
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sitting beside the road and Chedi Goswami was passing from there and they
asked him to take his daughter with him but he denied. He further stated that
Chedi Goswami started beating them by belt. He said that Sonu, Mohan and
Satish came at the spot. Raju Goswami came with knife along with Champa
Devi. Chedi Goswami caught hold of his uncle and Champa Devi caught hold
of her aunt and then Raju gave four knife blows to his uncle, and then to her
aunt. He stated that both died on the spot. He also stated that Raju eloped with
the daughter of his uncle for which a criminal case was also registered.
P.W.2, Bharan Dom, in his deposition stated that at about 6/6.30 A.M.
in the morning when he was there outside his home, he saw that Medhu Dom
and Sutla were sitting on the road side. Chedi Goswami was passing from
there and after some altercation between them, Chedi Goswami started
beating them with his belt. On this he, Atwari and Satish went there. Raju
Goswami came with knife along with Champa Devi. Chedi Goswami caught
hold of Medhu and Champa Devi caught hold of Sutla Devi and then Raju
gave four knife blows to Medhu, and then to his wife. He stated that both died
on the spot. He further stated that four months before the incidence Raju
eloped with Kalwa (Daughter of the deceased).
P.W.3, Rampado Dom, is the son of the deceased. He stated that when
he came to his home from his aunts' home, he got to know that Raju Goswami
had killed his parents. In his cross examination he stated that he got to know
about the incident from Satish Dom.
P.W.4, Satish Dom, is the informant of this case. He stated that Kalwa
is his cousin. Four months before the incident Raju Goswami eloped with her
cousin Kalwa. One day before the incidence Raju left Kalwa to her paternal
home and to this her parents objected. On the date of incidence when his uncle
and aunt were sitting by the road side, Chedi Goswami was passing from there
and threatened them with his belt. At the same time Raju and Champa went
there and Raju was having a knife in his hand. Chedi instigated him to kill
both of them. He further stated that his uncle and aunt were caught by Chedi
and Champa Devi respectively and Raju gave four knife blows to Medhu and
also stabbed Sutla in her right side of ribs. In his cross examination he stated
that he was not aware of the fact that whether Kalwa eloped or not and he is
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also not aware of any criminal case pending regarding the same.
P.W. 5, Dr. Sailendra Kumar, conducted the post-mortem on the
deceased. He in his deposition stated that on 12.04.1995 at about 4:30 P.M.,
he conducted the post-mortem of the deceased Medhu Dom. He found the
following ante-mortem injuries-
"(i)Stab wound with sharp margins 1"x 1/4" x cavity deep just above the middle
right clavical.
(ii) Stab wound with sharp margins 1"x 1/4" x muscle deep on right deltoid region.
(iii)Stab wound with sharp margins 3/4"x 1/4" with cavity deep at the lower end
of right scapula.
(iv) Stab wound with sharp margins 1"x 1/4" x cavity deep on the back of the
lower part of chest on left side in tenth intracoastal space 2" away from the mid
line."
He stated that the cause of death of deceased was due to heamorrhage,
shock and injuries on the internal vital organs caused by sharp cutting
penetrating weapon such as knife. (Exhibit- 1).
He further stated that on the same day he conducted the post-mortem
on the dead body of Sutla Devi. He found the following ante-mortem injury-
(i) Stab wound with sharp margins 1"x 1/4" x cavity deep on the auxiliary line on
right of the seventh intercoastal space.
He stated that the cause of death of deceased was due to the injuries
caused by sharp cutting penetrating weapon such as knife. (Exhibit- 1/1).
P.W. 6, Yadubansh Singh, is the Investigating Officer of the case. He in
his deposition stated that on the fateful day, he was posted as Officer in-Charge
of Mahuda Police Station. In the morning, at about 8:20 A.M, he got an
information of double murder in village Kalyanpur. When he reached at the
spot, he found that Sutla Devi and Medhu Dom were lying dead. He recorded
the fardbeyan of Satish Dom. He prepared the inquest report of both the
deceased (Exhibit 4 and Exhibit 4-A). He described about the place of
incident. He after investigation submitted the chargesheet before the court.
5. After the prosecution evidence, the statement of the accused persons
were recorded under Section 313 Cr.P.C. They denied to have committed the
offence, but no specific defense had been pleaded. After hearing both the
parties the trial court convicted them under section 302/34 of the Indian Penal
Code and sentenced them as aforesaid.
6. Learned counsel appearing on behalf of the appellants submitted that
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the prosecution story is based on witnesses who are not reliable. He submitted
that most of the witnesses were highly interested witnesses. He further argued
that the alleged incidence occurred in the broad day light but no independent
witness has been produced by the prosecution, even the informant did not
claim himself to be an eyewitness. He argued that there was previous enmity
between the appellants and the informant's family, therefore the appellants
have been falsely implicated in this case. He further submitted that no belt
injuries were found on the bodies of the deceased as alleged by the informant.
He lastly submitted that the alleged occurrence happened at the spur of the
moment and there was no common intention or prior meeting of minds which
is essential to apply section 34 of the Indian Penal Code and therefore he
prayed that the judgement of learned trial court needs to be set aside.
7. Learned counsel appearing on behalf of the State has defended the
impugned judgement of conviction and sentence passed by learned Trial
Court. He further submitted that P.W-1, P.W.-2, and P.W.-4 have been
consistent in their statements and their statements have been corroborated by
each other as well as with the statement in the fardbeyan. He also submitted
that the evidence of the doctor has also fully supported the case of prosecution
and it is clear from the post-mortem report that the deceased were stabbed by
knife. Thus, on the facts and circumstances the trial court has rightly convicted
the appellants and therefore he prayed to dismiss both these appeals.
8. After hearing the parties and after going through the evidence led by
the prosecution, I find that P.W.-2 is the eye witness to the said occurrence.
P.W.-4 has also seen the occurrence, though the son of the deceased P.W.-3 is
not the eye witness. From evidence of both the witnesses, I find that the day
before the incident, Raju Goswami along with Kalwa came to Kalwa's house
and left her in her paternal house which was objected by her parents. On the
very next day, the incident occurred.
9. From the evidence of the prosecution, it is clear that admittedly a fatal
blow on both the deceased were given by Raju. The allegation against these
two appellants is that they had caught hold of the deceased, when Raju gave
blow. P.W.-1, P.W.-2 and P.W.-4 have seen the occurrence and the fact their
presence at the place of occurrence cannot be doubted considering the medical
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evidence. It has come in evidence that Raju had given more than four blows
on Medhu Dom, by knife and one stab wound was found on Sutla Devi the
other deceased. Both the post mortem reports i.e. Exhibit-1 and 1/1
corroborates the ocular evidence to the effect that there were four stab wounds
found on the body of Medhu Dom and one on body of Sutla Devi caused by
knife. Thus, I hold that the evidence of these witnesses cannot be disbelieved.
10. Now the next question which would fall for consideration is the
involvement of these two appellants. P.W.-1 stated that Chedi Goswami had
assaulted them i.e. the deceased with belt when Raju came with a knife and
stabbed them. At that point of time Chedi Goswami and Champa Devi had
caught hold of the deceased. Similarly in the statement of P.W.-2 who stated
that Chedi was assaulting the deceased with the belt when Raju came and stab
them. At that point of time these two appellants had caught hold of the
deceased i.e. Medhu and Sutla Devi. Similar is the statement of P.W.-4. The
Trial Court had convicted these two appellants with the aid of Section 34 of
the Indian Penal Code. Section 34 of the Indian Penal Code reads as follows:-
"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."
The Hon'ble Supreme Court in the case of Chhota Ahirwar vs State of
Madhya Pradesh, reported in (2020) 4 SCC 126 has held that Section 34 is
only attracted when a special criminal act is done by several persons in
furtherance of common intention of all. In this type of offence all the persons
who are involved in committing the offence are liable in the same manner as
the principal offender, as if the offence has committed by each of them. It has
been held that the consensus of mind of participants can develop on the spot
itself. There must be a common intention to commit the particular offence.
The Hon'ble Supreme Court has further held in the aforesaid judgment that to
constitute common intention, it is necessary that the intention of each one of
the accused should be known to the rest of the accused. It is necessary to quote
paragraph 24 of the aforesaid judgment: -
"24. Section 34 is only attracted when a specific criminal act is done by several
persons in furtherance of the common intention of all, in which case all the
offenders are liable for that criminal act in the same manner as the principal
offender as if the act were done by all the offenders. This Section does not
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whittle down the liability of the principal offender committing the principal act
but additionally makes all other offenders liable. The essence of liability under
Section 34 is simultaneous consensus of the minds of persons participating in
the criminal act to bring about a particular result, which consensus can even
be developed at the spot as held in Lallan Rai & Ors. vs. State of Bihar
reported in (2003) 1 SCC 268. There must be a common intention to commit
the particular offence. To constitute common intention, it is absolutely
necessary that the intention of each one of the accused should be known to the
rest of the accused."
11. Further, in the above decision, the Hon'ble Supreme Court has gone on
to hold that mere participation in the crime with others is not sufficient to
attribute common intention. The facts of each and every case has to be dealt
with to find out as to whether there was a common intention between the
supporting accused and main accused to commit the crime, which the main
accused intend to do. The pre-meditated intention of the main accused and
others must be proved. It has been held that Section 34 of IPC is really
intended to meet a case in which it is difficult to distinguish between the acts
of individual members of the party and prove exactly what part was taken by
each of them. It is necessary to quote paragraphs 25 to 27 of the aforesaid
judgment for better appreciation:-
"25. Mere participation in crime with others is not sufficient to attribute
common intention. The question is whether, having regard to the facts and
circumstances of this case, it can be held that the Prosecution established that
there was a common intention between the accused appellant and the main
accused Khilai to kill the complainant. In other words, the Prosecution is
required to prove a premeditated intention of both the accused appellant and
the main accused Khilai, to kill the complainant, of which both the accused
appellant and the main accused Khilai were aware. Section 34 of the Indian
Penal Code, is really intended to meet a case in which it is difficult to
distinguish between the acts of individual members of a party and prove
exactly what part was played by each of them."
"26. To attract Section 34 of the Indian Penal Code, no overt act is needed on
the part of the accused if they share common intention with others in respect
of the ultimate criminal act, which may be done by any one of the accused
sharing such intention [see Ashok Basho (2010) SCC 660 (669)]. To quote
from the judgment of the Privy Council in the famous case of Barendra Kumar
Ghosh reported in AIR 1925 Privy Council 1, "they also serve who stand and
wait"."
"27. Common intention implies acting in concert. Existence of a prearranged
plan has to be proved either from the conduct of the accused, or from
circumstances or from any incriminating facts. It is not enough to have the
same intention independently of each other."
In Gadadhar Chandra Vs. State of West Bengal, reported in (2022) 6
SCC 576, the Hon'ble Supreme Court while reiterating the aforesaid principal
in paragraphs 13 and 14 has held as follows:-
"13. Moreover, the knife allegedly used by the appellant has not been
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recovered. According to the prosecution, the appellant questioned the
deceased why he had beaten Subhas Chandra, the appellant's elder brother.
After that, there was an exchange of words. The exchange of blows was
between the deceased and Arjun. The scuffle was between the deceased and
Arjun. Ultimately, it was Arjun who stabbed the deceased."
"14. As consistently held by this Court, common intention contemplated by
Section 34 of IPC presupposes prior concert. It requires meeting of minds. It
requires a prearranged plan before a man can be vicariously convicted for
the criminal act of another. The criminal act must have been done in
furtherance of the common intention of all the accused. In a given case, the
plan can be formed suddenly. In the present case, the nonexamination of two
crucial eye witnesses makes the prosecution case about the existence of a
prior concert and prearranged plan extremely doubtful."
12. Based on the aforesaid principal of law, we have to decide this case.
From the evidence the sequence which follows is:-
(i)The deceased were sitting outside their house, when Chedi Goswami
(appellant in Cri. Appeal No.659/2003) was passing from there.
(ii)The deceased asked Chedi Goswami to take back his daughter, but he
denied, then Chedi started assaulting them with the belt.
(iii)Sonu, Mohan and Satish came on the spot.
(iv)Raju the main accused, thereafter came with a knife and during course
of altercation Chedi caught hold on Medhu and Champa caught hold of
Suthli Devi and Raju stabbed both of them.
13. From the aforesaid chronology it is evident that some dispute was going
on between the parties. It is not the case as per the evidence that these two
appellants came along with the main assailants rather Chedi was crossing the
deceased when on some query Chedi got on agitated and started assaulting the
deceased with belt. There is no evidence to establish that there was any plan
by the accused to come to the place of occurrence and commit the murder. If
Chedi had any intention to commit the murder, he would have carried a
weapon and could have committed the murder, but it is the prosecution case
that he initially started assaulting the deceased with a belt when he was
passing through. Further, from the evidence, it is clear that in the spur of the
moment the entire occurrence had taken place. It is also evident from the
evidence that Chedi was assaulting him with the belt when Raju came with
the knife and thereafter assaulted the deceased when Chedi and his wife
caught hold of them. In this case, we find that the prosecution has failed to
establish pre-meditated or pre-arranged intention of these two appellants to
commit murder of the deceased. In absence of the basic ingredients, it would
not be proper to sustain the conviction of these two appellants with aid of
Section 34 of IPC, thus, the conviction so far as these appellants are
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concerned, with the aid of Section 34 of IPC is set aside and these appellants
are acquitted from the charges.
14. Both these Criminal appeals are accordingly allowed.
15. As these appellants are already on bail, they and their bailors are
discharged from the liabilities of their bail bond.
16. Let the Trial Court record be transmitted to the court concerned along
with the copy of this judgement.
(Ananda Sen, J.)
Sanjay Kumar Dwivedi, J: I agree.
(Sanjay Kumar Dwivedi, J.)
High Court of Jharkhand, Ranchi
Dated 25/04/2025
AFR /R.S./ Cp 03.
