Madhya Pradesh High Court
Nati Alias Amar vs The State Of Madhya Pradesh on 10 March, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 CRA-9661-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 9661 of 2023
(NATI ALIAS AMAR Vs THE STATE OF MADHYA PRADESH )
Dated : 10-03-2025
Shri Jay Kumar Dwivedi - Advocate for the appellant.
Smt. Shraddha Tiwari - Panel Lawyer for the respondent-State.
I.A. No.3652/2025 has been moved by the appellant for suspension of
sentence.
Although, this appeal has already been admitted on 20.02.2025 but at
the time of hearing the application for suspension of sentence, it is noticed
that an application i.e. I.A. No.18166/2023 for condonation of delay of three
months in filing the appeal is pending consideration. Somehow, at the time
of admission, neither the counsel for the appellant pointed out nor the
application was considered, thus, the order dated 20.02.2025 is being
recalled.
The application i.e. I.A. No.18166/2023 is allowed and the delay is
condoned for the reasons mentioned in the application itself.
The appeal is admitted for hearing.
Learned counsel for the appellant has also argued on I.A.
No.3652/2025 seeking suspension of sentence and grant of bail to appellant
Nati alias Amar.
Vide impugned judgment dated 22.02.2023 passed by III Additional
Sessions Judge, Jabalpur in S.T. No.600700/2013, the appellant has been
convicted under Section 307/34 of the IPC (two counts) and sentenced to
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undergo R.I. for 10 years with fine of Rs.5000/- (on each count) failing
which further R.I. for 06 months and also convicted under Section 25(1-B)
(b) of the Arms Act and sentenced to undergo R.I. for 01 year with fine of
Rs.1000/- failing within further R.I. for 03 months.
Learned counsel for the appellant submits that the appellant has
already suffered almost 01 year and 06 months of incarceration and bail is
being sought mainly on the ground that though the appellant has been
convicted under Section 34 of the IPC but that in view of the facts and
circumstances and evidence adduced by the prosecution is not applicable.
He submits that in-fact offence under Section 307 of the IPC has been
committed by the co-accused Rahul Gaud but he has not been convicted so
far as he is absconding and at the time of pronouncement of judgment, he
was not before the Court, as such, the Court has not pronounced the
judgment in his regard.
Learned counsel for the appellant has submitted that from the finding
given by the Court below, it is clear that gunshot injury was caused by co-
accused Rahul and present appellant was armed with knife and caused injury
to Sanjay Jhariya but in-fact no knife injury was found over the body of
Sanjay Jhariya and as such, Section 34 is not applicable because appellant
has no active participation in the crime. He has also submitted that as per the
statement of witnesses and statement recorded under Section 161 of Cr.P.C.,
it is stated that the injury was caused by the present appellant with the help of
knife on the thigh of Sanjay Jhariya but in the statement before the Court,
Sanjay Jhariya stated that the injury was caused on his head. He submits that
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there is a material contradiction and it can be easily considered that the
witnesses produced by the prosecution were not trustworthy and as per the
legal position, the offence of Section 34 does not apply as prosecution failed
to show any common intention to commit a crime that too of Section 307 of
IPC. He further submits that even otherwise, the witnesses on which the trial
Court has relied upon have given conflicting version regarding injury caused
by the present appellant and as such, the said witnesses cannot be relied upon
and according to him, Section 34 does not apply because indisputably the
fire arm was used by the co-accused Rahul Gaud causing injury and offence
of Section 307 was registered but he has not been convicted so far and as
such, he submits that if Rahul is acquitted from the offence of Section 307 of
IPC, the present appellant cannot be convicted for the said offence and
therefore, he submits that the bail application of the present appellant can be
considered at this stage because the order of conviction passed against the
present appellant, which is impugned in this appeal, is not sustainable and
there is every likelihood that the said order shall be set aside by the Court.
Learned counsel for the appellant has also submitted that the allegation
against the present appellant is of causing injury with the help of knife but
the knife seized from the present appellant did not contain any blood stain
and as per the report of FSL, no human blood was found on the seized knife.
Learned counsel for the respondent has opposed the bail application
and submits from the judgment passed by the Court below which is
impugned in this appeal. The Court below has considered this aspect in
paragraph-20 of the judgment and there is no error in the said observation
4 CRA-9661-2023
and finding given by the Court, therefore, submission made by learned
counsel for the appellant that Section 34 of IPC is not applicable is having no
substance.
Learned counsel for the respondent has also submitted that the co-
accused Rahul attended the trial and only at the time of pronouncement of
judgment, he remained absent and till now he is absconding. Only on the
basis of presumption that had it been Rahul acquitted, the offence of 307 of
IPC would also go and present appellant would have not been convicted but
this analogy, in the facts and circumstances of the case, is not applicable
because offence of Sections 307 and 34 of the IPC has been considered by
the Court and present appellant has been convicted and as such conviction
against Rahul is inevitable under Section 307 of IPC, therefore, this
presumption is having no applicability and accordingly, it can be rejected.
According to learned counsel for the respondent seized article does not
contain blood stains but ocular evidence is there of causing injury with the
help of knife, therefore, nothing more is required, conviction is proper and at
this stage, application for suspending sentence of the appellant is liable to be
rejected.
I have heard learned counsel for the parties and also perused the
record.
As far as submission made by learned counsel for the appellant with
regard to applicability of Section 34 of IPC is concerned, I am not convinced
with the submission made by him for the reason that in the facts and
circumstances of the present case and evidence adduced by the prosecution
5 CRA-9661-2023
during the course of trial and finding given by the Court below on the basis
of said material, it is clear that presence of present appellant was unrebutted
in the occurrence and causing injury to one of the injured with the help of
knife is also unrebutted. As such, the present appellant has played an active
role in the offence though he has not caused any injury to the injured
forming an offence under Section 307 of IPC but the co-accused has caused
the said injury and therefore, the over all conduct and nature of crime
committed indicates that there is a common intention and the offence
committed by the present appellant along with the co-accused Rahul was
premeditated as they were armed and has assaulted the complainant as there
was some previous enmity because of a criminal case pending as has come in
the story of prosecution and therefore, only because present appellant has not
caused injury forming an offence under Section 307/34 is not applicable and
this submission in the facts and circumstances of the case, is not sustainable
and therefore, it is rejected. As per learned counsel for the appellant the
witness cannot be relied upon because there is a material contradiction in the
statement under Section 161 of Cr.P.C. and statement recorded during the
trial. However, from the statement of witnesses, it is clear that the present
appellant has not cross examined the witnesses and therefore, the question of
contradiction in the statement does not arise. Whatever statement recorded
during the trial as against the present appellant since not controverted, in
absence of any cross examination by the appellant, the submission is
misconceived and it is also rejected.
Learned counsel for the appellant has relied upon a judgment of
6 CRA-9661-2023
Supreme Court rendered in Constable 907 Surendra Singh and another vs.
State of Uttrakhand 2025 SCC OnLine SC 176 wherein with regard to
Section 34 of IPC, it was observed as under :-
"18. By now it is a settled principle of law that for
convicting the accused with the aid of Section 34 of the
IPC the prosecution must establish prior meetings of
minds. It must be established that all the accused had
preplanned and shared a common intention to commit
the crime with the accused who has actually committed
the crime. It must be established that the criminal act
has been done in furtherance of the common intention
of all the accused. Reliance in support of the aforesaid
proposition could be placed on the following judgments
of this Court in the cases of:
(i) Ezajhussain Sabdarhussain v. State of Gujarat;
(ii) Jasdeep Singh alias Jassu v. State of Punjab;
(iii) Gadadhar Chandra v. State of West Bengal (supra);
and
(iv) Madhusudan v. State of Madhya Pradesh."
Learned counsel for the appellant has also relied upon a Supreme
Court pronouncement in Rai Sandeep alias Deepu vs. State (NCT of Delhi)
(2012) 8 SCC 21 wherein Supreme Court has observed that if the statement
of victim is conflicting, the conviction on solitary statement cannot be based
but here in this case that is not the position because it is not the solitary
statement of victim but there are other witnesses also. Even, victim has not
been cross examined and his statement with regard to present appellant
remained unrebutted, therefore, there is no question for not relying the
statement of victim.
As far as applicability of Section 34 is concerned, the Supreme Court
in the case of Surendra Chauhan vs. State of M.P. (2000) 4 SCC 110 has
considered the application of Section 34 of IPC in the circumstances and
observed as under :-
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"11. Under Section 34 a person must be physically
present at the actual commission of the crime for the
purpose of facilitating or promoting the offence, the
commission of which is the aim of the joint criminal
venture. Such presence of those who in one way or the
other facilitate the execution of the common design is
itself tantamount to actual participation in the criminal
act. The essence of Section 34 is simultaneous
consensus of the minds of persons participating in the
criminal action to bring about a particular result. Such
consensus can be developed at the spot and thereby
intended by all of them. (Ramaswami Ayyangar v. State
of T.N. [(1976) 3 SCC 779 : 1976 SCC (Cri) 518] ) The
existence of a common intention can be inferred from
the attending circumstances of the case and the conduct
of the parties. No direct evidence of common intention
is necessary. For the purpose of common intention even
the participation in the commission of the offence need
not be proved in all cases. The common intention can
develop even during the course of an occurrence.
(Rajesh Govind Jagesha v. State of Maharashtra [(1999)
8 SCC 428 : 1999 SCC (Cri) 1452] .) To apply Section
34 IPC apart from the fact that there should be two or
more accused, two factors must be established: (i)
common intention, and (ii) participation of the accused
in the commission of an 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 liability but if participation of the
accused in the crime is proved and a common intention
is absent, Section 34 cannot be invoked. In every case,
it is not possible to have direct evidence of a common
intention. It has to be inferred from the facts and
circumstances of each case."
In view of the aforesaid, it is clear that to apply Section 34 of IPC, two
ingredients are required to be established :-
(1) Common intention.
(2) Participation of the accused in the commission of offence.
8 CRA-9661-2023
It is also observed that for inferring the common intention, direct
evidence is not required in each and every case but it can be inferred from
the facts and circumstances of the case. In the present case, it is clear that in
view of the unrebutted evidence, both the accused came on the same vehicle
armed with gun and knife and caused injury showing common intention.
The Supreme Court in the case of Rakesh and another vs. State of
Uttar Pradesh and another (2021) 7 SCC 188 has not only considered the
applicability of Section 34 but also considered about the seizure weapon
comparing it with the ocular evidence. The observation made by the
Supreme Court is as under :-
"13. Now so far as the submission on behalf of the
defence that at the most it can be said that A-2 and A-3
caused injuries on the dead body as according to them
they caused injuries after the gunshot fired on the
deceased and the deceased fell down and died.
Therefore, it is the case on behalf of A-2 and A-3 that
having caused the injuries on the dead body, they could
not have been convicted for the offence punishable
under Section 302 IPC. However, it is required to be
noted that A-2 and A-3 are convicted with the aid of
Section 34 IPC. Apart from that, there is no evidence at
all on record to suggest that when the deceased
sustained injuries by knives by A-2 and A-3 and the
deceased sustained Injuries 2 to 8, by the time he was
dead. Much reliance has been placed on the deposition
of PW 1 by the defence that he admitted that after the
gunshot injury, the deceased fell down and died.
However, he does not say that when A-2 and A-3
caused injuries by knives at that time the deceased was
dead. Therefore, the defence has failed to establish and
prove that at the time when the deceased sustained
Injuries 2 to 8 by the knives used by A-2 and A-3, he
was dead.
14. It is also the case on behalf of the defence that
according to the witnesses/eyewitnesses the weapon
used was "dagger" and not "knife" and what is
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recovered is "knife" and PW 2 has subsequently
improved his deposition that the other accused caused
injuries by knives. It is the case on behalf of the defence
that even the doctor in his cross-examination has stated
that it is very doubtful to say that the injuries were by
sharp cutting weapon on both sides. However, it is to be
noted that the doctor answered the question which was
put to him. One is required to consider the entire
evidence as a whole with the other evidence on record.
Mere one sentence here or there and that too to the
question asked by the defence in the cross-examination
cannot be considered stand alone. Even otherwise it is
to be noted that what is stated by the doctor/medical
officer can at the most be said to be his opinion. He is
not the eyewitness to the incident. PW 1 and PW 2 have
categorically stated that the other accused inflicted the
blows by knives. The same is supported by the medical
evidence and the deposition of PW 2. Injuries 2 to 8 are
sufficient by the sharp cutting weapon. Injuries 2 to 8
are on different parts of the body which show the
intention and conduct on the part of the other accused
A-2 and A-3. Therefore, they are rightly convicted for
the offence punishable under Section 302 IPC with the
aid of Section 34 IPC. Their presence and participation
have been established and proved by the prosecution by
examining PW 1 and PW 2 who are found to be reliable
and trustworthy witnesses."
Thus, in the present case, when the witnesses adduced by the
prosecution has not been cross examined by the present appellant then
question of their reliability only on the basis of contradiction cannot be
considered and as such, looking to the manner in which the crime is
committed and the role of the present appellant in the crime, prima facie, I
am of the opinion that the submission made by learned counsel for the
appellant is having no substance and applicability of Section 34 of IPC
cannot be said to be illegal and looking to the period of sentence, at this
stage, I am not inclined to consider the bail application unless the appellant
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suffers half of the incarceration period.
Accordingly, I.A. No. 3652/2025 is dismissed.
(SANJAY DWIVEDI)
JUDGE
PK
