Ajay Chourasia vs The State Of M.P.
2021 Latest Caselaw 8896 MP

                                           HIGH COURT OF JUDICATURE FOR MADHYA
                                                   PRADESH : JABALPUR


                                       Case No.                                Cr. A. No.1698/1998
                                       Parties Name                             Ajay Chourasia
                                                                                      Vs.
                                                                               The State of M.P.

                                       Date of order                                16.12.2021
                                       Bench Constituted                      Justice Vivek Agarwal
                                       Order passed by                        Justice Vivek Agarwal
                                       Whether approved for reporting                  No
                                       Name of counsel for parties      Shri Sahil Sharma, learned counsel
                                                                        for the appellant.
                                                                        Shri Vijay Kumar Shukla, learned
                                                                        Panel       Lawyer     for     the
                                                                        respondent/State.
                                       Law laid down                                    --

                                       Significant paragraph numbers                    --



                                                                     JUDGMENT

(16.12.2021)

This criminal appeal has been filed by the

appellant - Ajay Chourasia S/o Ramraj Chourasia being

aggrieved of judgment dated 17.07.1998 passed by

learned 5th Additional Sessions Judge, Rewa in Sessions

Trial No.205/1997 whereby learned Additional Sessions

Judge has convicted the appellant under Section 294 of

IPC with fine of Rs.100/-, in default, S.I. for a term of 1

month and has also convicted him under Section 307

read with Section 34 of IPC with R.I. for a term of 5

years and fine of Rs.1000/-, in default, additional R.I. for

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a term of two months.

2. Learned counsel for the appellant submits that as

per the prosecution story incident took place on

01.06.1997 at about 11 p.m. when injured Shiv

[email protected] (PW-10) S/o complainant Krishna Das

Badoliya (PW-1) visited Gomti Square along with his

friend Nilesh Kumar Nigam (PW-9), where allegation

is that present appellant stopped the victim Shiv

[email protected] and abused him. When victim tried to

stop him then he caught hold to him when co-accused

Sunil Dahia took out a knife and stabbed the victim

causing injury on left hand side of his stomach which

started bleeding. This incident was seen by Bali,

[email protected] Khan and others. Victim was taken to

his house by Nilesh Kumar Nigam (PW-9), who

narrated the incident to his father Krishna Das

Badoliya (PW-1) when FIR (Ex.P-2) was recorded at

Police Station Govindgarh. Case Crime No.83/1997

was registered under Sections 341, 294 and 307 read

with Section 34 of IPC.

3. Shri Sahil Sharma, learned counsel for the

appellant in his turn submits that Krishna Das Badoliya

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(PW-1) author of FIR (Ex.P-2) is not a eye witness. It is

submitted that FIR (Ex.P-2) was lodged on a written

complaint (Ex.P-1). It is not disputed that main accused

Sunil Dahia is absconding.

4. Reading from para 2 of the examination-in-chief

of Krishna Das Badoliya (PW-1) it is submitted that

Nilesh Kumar Nigam (PW-9) had brought victim to his

house when Nilesh Kumar Nigam (PW-9) had

informed then Sunil Dahia had stabbed the victim and

there was some verbal communication which was

going on between the present appellant and the victim.

This witness has admitted in cross-examination that he

had not seen the incident. This witness further admitted

in para 7 that name of the present appellant was

recorded in the complaint and FIR as per the version of

Nilesh Kumar Nigam (PW-9).

5. It is submitted that Nilesh Kumar Nigam (PW-9)

has turned hostile. He did not support the prosecution

case. Nilesh Kumar Nigam (PW-9) has mentioned that

Shiv Prasad @ Chottu had gone to a corner of the

square to answer call of the nature when he returned

back to shop of Nilesh Kumar Nigam (PW-9) then he

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was beeding from stomach. He was not knowing as to

who had stabbed him. This witness denied that he had

seen Ajay Chourasia holding Shiv Prasad @ Chottu

and Sunil Dahia stabbing him.

6. It is submitted that Jayprakash Badoliya (PW-2)

is relative of the victim but he is not an eye witness. In

cross-examination he admitted that he was standing at

a distance of 10-15 steps and he is not in a position to

narrate as to the tone and tenor of discussion which

took place between the victim and the present

appellant. This witness also admitted that tubelight was

positioned 100 feet away from the place of incident.

Reading from the evidence of this witness, it is

submitted that there was no premeditation of mind and

it is not a case of consent but even if any incident took

place at the heat of the moment and the main accused is

Sunil Dahia who is absconding from the date of the

incident. This witness has denied that he had stated to

the police in his statement Ex.D-1 that thereafter Nilesh

Kumar Nigam (PW-9) had taken Shiv Prasad Badoliya

(PW-10) towards his house and this witness had gone

towards his house.

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7. It is submitted that incident took place on

01.05.1997 whereas police had recorded statement of

this witness on 02.06.1997 i.e. after more than a month.

It is submitted that name of Nareshlal Gupta (PW-3) is

not mentioned as a witness alleged to have seen the

incident and only name of Bali, [email protected] Khan

have been mentioned as a witness and not of

Jayprakash Badoliya, he is a planted witness.

8. Naresh Lal Gupta (PW-3) has categorically

mentioned that no incident had taken place in front of

him. Ramesh Kumar Badoliya (PW-5) is brother of the

victim, is not an eye witness, he admitted that he was at

Rewa at the time of incident.

9. Ganesh Sharma (PW-6) is a witness of seizure as

also Ramesh Kumar Badoliya (PW-5). It is evident that

Shri R.K. Singh, SHO(PW-4) has mentioned that on

02.04.1997 he recorded statement of Shiv Prasad @

Chottu. He had seized a Fulpant of light blue colour

containing blood stains, one half cotton shirt having

stribes of green, yellow, pink and brown colour in

front of Nilesh Kumar Nigam and Gudda @ Anees

Khan. This witness has mentioned that seizure memo

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was prepared at the Police Station in presence of

Ganesh Sharma and Dr. Ramesh Kumar Badoliya. This

witness admits that one Neani and one shirt was seized

in front of him, this witness further stated that he was

called at police station asking him to sign on a paper

showing confiscation of a baniyan and a shirt when he

had signed on a seizure memo.

10. Dr. A.S. Siddiqui (PW-8) admits that he had

examined Shiv Prasad Badoliya and had found incised

wound deep 4x2 cm wound on the left hand side of the

stomach in intern coastal space caused by a sharp

weapon within 24 hours. This witness has mentioned

that general condition of the patient was normal and he

was speaking.

11. Shiv Prasad Badoliya (PW-10) in his

examination-in-chief has mentioned that he had

become unconscious and had fallen at the spot. It is

submitted that this evidence is contrary to the

statements of Dr. M.A. Siddiqui. Reading from para 3

of the examination-in-chief it is submitted that this

witness has admitted that there was a money

transaction between him and the main accused Sunil

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Dahia. In cross-examination, in para 6, this witness has

categorically mentioned that Ajay Chourasia had

demanded Rs.10 and when victim refused to give him

Rs.10, then Ajay Chourasia, started talking to him

when Sunil Dahia had stabbed him. In para 7, this

witness has mentioned that there was no hot talk

between him and Ajay Chourasia but talk was general.

In para 9, this witness has admitted that Ajay Chourasia

did not perform any act which could had caused any

discomfort to him. This witness also admitted that after

being released on bail Ajay Chourasia never threatened

him.

12. Reading this evidence of the victim Shiv Prasad

@ Chottu (PW-10), it is submitted that there is no overt

act attributable to the present appellant so to constitute

an offence under Section 307 read with Section 34 of

IPC. There is no act attributed to the present appellant

which would have caused death and appellant would

have been guilty of murder.

13. Learned Panel Lawyer for the respondent/State

supports the impugned judgment of trial Court.

14. I have heard learned counsel for the parties and

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perused the record.

15. In cross-examination Shiv [email protected] (PW-

10) has deposed that there was no hot talk between him

and the present appellant, normal conversation was

going on between the two when all of sudden Sunil

Dahia had stabbed him. Present appellant had not

performed any act causing discomfort to the victim and

because he has no personal relationship with this

accused, therefore, he was not having any special

conversation with him. Taking into consideration

statements of injured victim Shiv [email protected] (PW-

10) coupled with the fact that star independent witness

Nilesh Kumar Nigam (PW-9) has turned hostile and

has not supported prosecution story and there are

loopholes in the version of Jayprakash Badoliya (PW-

2) about the source of light and its distance,

prosecution has not examined any other independent

witness present at the spot of the incidence, ingredients

of Section 34 are not made out so to record conviction

of the appellant in terms of the judgment of Supreme

Court cited by Shri Sahil Sharma in the case of

Sripathi and Others Vs. State of Karnataka, (2009)11

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SCC 660, wherein it is held that Section 34 of IPC has

been enacted on the principle of joint liability in the

commission 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. It is held that intention has to be

inferred from the circumstances appearing from the

proved facts circumstances of the case.

16. Similarly, in case of Jai Bhagwan and Others

Vs. State of Haryana, (1999) 3 SCC 102, it is held that

to apply Section 34 of IPC apart from the fact that there

should be two or more accused, two factors must be

established: (i) commission intention and (ii)

participation of the accused in the commission of

offence. If a common intention is proved but no overt

act is attributed to the individual accused, Section 34

will be attracted as essentially it involves vicarious

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liability but if participation of the accused in the crime

is proved and a common intention is absent, Section 34

cannot be invoked.

17. In the present case, common intention is absent.

Incident took place on a chance meeting when victim

had visited Gomti Square at 11 p.m. it is not a case of

the prosecution that victim or the accused were

habitual visitor to that square at that particular point of

time and this fact was known to the accused as a result

there was an element of planning which necessarily

involves common intention when incident took place.

18. It is evidence of the victim himself which speaks

loudly that he had a dispute with co-accused Sunil

Dahia but had no special acquaintance with the present

appellant. Victim PW-10 has given a clean chit to the

present appellant saying that their conversation was

normal.

19. Thus, in absence of common intention and

fulfillment of the ingredients of Section 34 IPC, I am of

the opinion that learned 5th Additional Sessions Judge

committed an error in appreciating the evidence on

record and has recorded conviction of the appellant

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Ajay Chourasia. As ingredient of Section 34 are not

made out, there is no element of common intention

which may be inferred from the record, his conviction

under Section 307 read with Section 34 of IPC when no

overt act of causing a hurt threatening the life of the

victim has been attributed to the present appellant but

is attributed to absconding co-accused.

20. Accordingly, the appeal is allowed. The

impugned judgment is hereby set aside. Since the

appellant is on bail, his bail bonds are discharged.

(VIVEK AGARWAL) JUDGE

Tabish

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