Deepak vs State of C.G.

Sunil Kumar Sinha, J.

These appeals are directed against the judgment dated 09.10.2009 passed in Sessions Trial No. 125 of 2008 by the Sessions Judge.

Rajnandgaon (C.G.). By the impugned judgment, the appellants have been convicted and sentenced in the following manner with a direction to run

the sentences concurrently:-- The facts, briefly stated, are as under:--

1.1 On 01.08.2008 at about 9.45 pm, deceased Teekam, Kamlesh (PW-1) and Mahendra (PW-2) were sitting together in Mararbadi,

Shantinagar, Chikhli, Rajnandgaon. The allegations are that, the two appellants came there and appellant Deepak @ Shashi (A-1) assaulted them

by axe. Teekam (deceased) had sustained multiple serious injuries and succumbed to those injuries at the place of occurrence itself. The two eye-

witnesses Kamlesh (PW-1) and Mahendra (PW-2)had sustained simple injuries. The matter was reported to the Police outpost by Kamlesh (PW-

1) on which First Information Report (FIR-Ex. P/1) was registered which was further registered as regular FIR in the Police Station vide Ex. P/5.

Merg Intimation Ex. P/3 was also registered formally in the outpost and was further registered in Police Station vide Ex. P/2.

1.2 The Investigating Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex/P-13) on the dead body of

the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr CS Mahobe (PW-3), who found

multiple serious injuries on the dead body of the deceased. He opined that the injuries were ante-mortem and cause of death was shock and

haemorrhage on account of the injuries sustained by the deceased and it was homicidal in nature. The post-mortem report is Ex. P/4.

1.3 The two eye-witnesses namely, Kamlesh (PW-1) and Mahendra (PW-2) were also examined by Dr BL Kumre (PW-6). They had sustained

simple injuries. Their MLC reports are Ex. P/15-A and Ex. P/16-A.

1.4 In further investigation, Deepak @ Shashi (A-1) was taken into custody and his discovery statement (Ex P/7) was recorded and an axe was

seized at his instance vide seizure memo Ex. P/8.

1.5 The seized articles were sent for their chemical examination to the Forensic Science Laboratory (FSL), Raipur, from where a report was

received. According to the FSL report, blood stains were found on almost all the articles including the axe. Though these articles were sent for

further examination to the serological laboratory, but no report could be filed.

1.6 The case of the prosecution was based on eye-witness account of Kamlesh (PW-1) and Mahendra (PW-2). The learned Sessions Judge

relied on the testimonies of these witnesses and held that Deepak @ Shashi (A-1) had inflicted injuries to the deceased and these witnesses by

using the axe and Shammi (A-2) had shared common intention with him, therefore, both were liable for punishment. Thus, the appellants (A-1 &

A-2) were convicted and sentenced as above. Hence these appeals.

During the pendency of these appeals, IA-1 was filed by the appellant in Criminal Appeal-861/09 under Section 7A of the Juvenile Justice

(Care and Protection of Children) Act, 2000 claiming that appellant Deepak @ Shashi (A-1) was a juvenile on the date of the incident. This Court

had directed for an enquiry regarding the age of Deepak @ Shashi (A-1) on the date of the incident. The enquiry was conducted by Sessions

Judge, Rajnandgaon and a report was submitted on 09.04.2014. According to the said report, the age of Deepak @ Shashi (A-1) was 18 years,

one month and two days on the date of incident i.e. 01.08.2008.

Learned counsel for the parties have not disputed the above report before us, therefore, the point relating to juvenality of Deepak @ Shashi (A-

1) stands concluded and no benefit can be extended on that account and cases of the appellants are to be scrutinised on merits.

Shri Parag Kotecha, learned counsel appearing on behalf of appellant Shammi (A-2), has argued that he has been convicted with the aid of

Section 34 IPC, whereas, there is no evidence to show that he had shared any common intention with appellant Deepak @ Shashi (A-1),

therefore, conviction of Shammi (A-2) with the aid of 34 IPC cannot be sustained.

Shri Ravindra Agrawal, learned counsel appearing on behalf of appellant Deepak @ Shashi (A-1) has argued that Kamlesh (PW-1) and

Mahendra (PW-2) are not reliable witnesses; they have not given correct version of the incident. There are contradictions in their evidence,

therefore, conviction based on their testimonies cannot be sustained.

On the other hand, learned counsel for the State has opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard counsel for the parties.

Firstly, we shall deal with the question of conviction of Shammi (A-2) with the aid of Section 34 IPC.

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. Therefore, to prove the charge

of common intention, the prosecution has to establish by evidence, which may be direct or circumstantial evidence, that there was plan or meeting

of minds of all the accused persons to commit the offence for which they were charged with the aid of Section 34, be it prearranged or on the spur

of the moment; but it must necessarily be before the commission of the offence. The Supreme court reiterated time and again that to constitute

common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them.

If we examine the case of Shammi (A-2), it comes in the evidence of Kamlesh (PW-1) that in the fateful night at about 9.30 pm, he along with

Mahendra (PW-2) and Teekam (deceased) were sitting in Mararbadi and talking with each other. At that time, Shammi (A-2) also came there. He

also started talking with them. It is after this, Deepak @ Shashi (A-1) came there with an axe, and assaulted the deceased and these witnesses

(PW1 & PW-2). It also comes in the evidence of Kamlesh (PW-1) that when Deepak @ Shashi (A-1) was assaulting them, Shammi (A-2) was

saying them to run away, otherwise, they would be killed.

Mahendra (PW-2) has also deposed in similar fashion. He deposed that Deepak @ Shashi (A-1) came to the place of occurrence with an axe

in his hand and assaulted them by the axe. He (A-1) had chased him. Mahendra (PW-2) only added that Shammi (A-2) was also there along with

A-1.

We find from the record that there are no allegations that Shammi (A-2) had also assaulted the deceased or caused injuries to Kamlesh (PW-

1) or Mahendra (PW-2). Even there are no allegations that he had caught anyone of them or in any other manner he assisted Deepak @ Shashi

(A-1) either to commit murder of the deceased or to assault the two eye-witnesses (PW-1 & 2). He was not holding any weapon. If we look into

the evidence of Kamlesh (PW-1), it comes that he had not come along with Deepak @ Shashi (A-1). It comes in his evidence that Shammi (A-2)

had come there prior to arrival of Deepak @ Shashi (A-1) and he was also talking with the deceased and these injured witnesses (PW-1 & 2) in

usual manner. Thus, there is no evidence that there was plan or meeting of minds of Deepak @ Shashi (A-1) and Shammi (A-2) to commit murder

of the deceased or to assault the injured witnesses. Even there is no evidence to show that any such plan was made at the spur of moment. There is

absolutely no evidence to show that Shammi (A-2) was having any knowledge that Deepak @ Shashi (A-1) was coming there with an axe and he

would be assaulting the deceased and the injured persons. We are of the view that in the above facts and circumstances of the case, it cannot be

held that Shammi (A-2) had shared common intention with Deepak @ Shashi (A-1) so as to make him liable for punishment in the above manner.

The conviction and sentence of Shammi (A-2), therefore, deserve to be set aside.

So far as conviction of Deepak @ Shashi (A-1) is concerned, Kamlesh (PW-1) and Mahendra (PW-2) have clearly deposed in their

evidence that while the three persons (deceased, PW-1 & 2) were sitting in Mararbadi, Deepak @ Shashi (A-1) came there with an axe and

attacked over the deceased and the two injured witnesses. The injuries sustained by the deceased and the two injured witnesses were caused by a

sharp edged weapon like axe. We have no reason to disbelieve the testimonies of Kamlesh (PW-1) and Mahendra (PW-2). So far as the assault

given by axe is concerned, they have deposed in clear manner that Deepak @ Shashi (A-1) after coming to the place of occurrence, had assaulted

the deceased by an axe which was resisted by Kamlesh (PW-1) & Mahendra (PW-2). They were also assaulted by him.

The versions of the two eye-witnesses (PW-1 & 2) are duly corroborated by the medical evidence of Dr CS Mahobe (PW-3), who

conducted autopsy on the dead body of the deceased and Dr BL Kumre (PW-6), who conducted medical examination of these two injured

witnesses. This makes clear that they were present at the place of occurrence. They have given details of manner of assault and have also named

the accused specifically, who, in fact assaulted the deceased. Thus, their evidence asumes importance (Vide: Balraje @ Trimbak Vs. State of

Maharashtra, and Abdul Sayeed Vs. State of Madhya Pradesh, .

Appellant Deepak @ Shashi (A-1) was well known to the two eye witnesses. They had seen the incident of commission of murder of the

deceased from a very short distance. As we have stated, they had also sustained injuries in the same incident. The FIR (Ex. P/1) was lodged by

one of the eye-witnesses, Kamlesh (PW-1). He has mentioned the names of accused persons including Deepak @ Shashi (A-1) in the FIR. Thus,

it was a case in which there was neither any question of mistaken identity nor that they had added the name of Deepak @ Shashi (A-1) later on.

We are of the view that the learned Sessions Judge was fully justified in believing the testimonies of Kamlesh (PW-1) and Mahendra (PW-2), so

far as the overt act attributed to Deepak @ Shashi (A-1) is concerned. Thus, the two eye-witnesses, Kamlesh (PW-1) and Mahendra (PW-2)

have clearly stated in their evidence that Deepak @ Shashi (A-1) alone had assaulted the deceased by using the axe. The axe was later on seized

on the discovery made by him and it was containing blood.

Therefore, there is sufficient material to sustain the conviction of Deepak @ Shashi (A-1) in the matter. He would be liable for commission of

murder of the deceased and also for causing simple injuries to Kamlesh (PW-1) and Mahendra (PW-2).

For the foregoing reasons, Criminal Appeal- 818 of 2009 filed by Shammi (A-2) is allowed. The conviction and sentences awarded to him

under Sections 302/ 34, 324/ 34 & 324/ 34 IPC are set aside. He is acquitted of the charges framed against him. It is stated that he is in jail. He

be set at liberty, forthwith, if not required in any other case. Criminal Appeal- 861 of 2009 filed by Deepak @ Shashi (A-1) has no merit. It is

liable to be dismissed and is hereby dismissed. But his conviction under Sections 302/ 34, 324/ 34 and 324/ 34 are modified under Sections 302,

324 and 324 IPC simpliciter. However, the sentences awarded to him under each count are maintained. The direction to run the sentences

concurrently is also maintained.