Khorbahra vs State of M.P.

Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 6th of May, 1996 passed in Sessions Trial No. 197/92 by the First Additional Sessions Judge, Raipur. By the impugned judgment, appellant- Khorbahra has been convicted u/s. 302 IPC and appellant- Sadhram @ Sadhu has been convicted u/s. 302/34 IPC and both have been sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:-

Deceased- Chhabidas and the 3 accused persons namely- Khorbahra (A-1), Bhuneshwar @ Bhakla (A-2) and Sadhram @ Sadhu (A-3) were residents of same village. In the intervening night of 26th-27th of February, 1992, they planned for gambling. For gambling, they selected the premises of Mahamaya Devi Temple which was situated in the outer area of the village. The case of the prosecution is that during the course of gambling, a quarrel begun between them and the accused persons assaulted the deceased by lathi and stones. The deceased sustained multiple serious injuries and succumbed to those injuries. The incident was witnessed by Janaklal (PW-7) and Chhannu (PW-8). Janaklal (PW-7) lodged First Information Report (F.I.R. - Ex. -P/14) at 8.00 a.m. on 27.2.92. Merg intimation (Ex. -P/22) was also recorded at 8.20 a.m. Dr. D.N. Bijwe (PW-6) conducted the autopsy. He noticed multiple serious injuries, including fracture of scalp on the dead body of the deceased and opined that the cause of death was coma on account of fracture of scalp and compression of brain due to repeated blows and the death was homicidal in nature. The post-mortem report is Ex. -P/12. The learned Sessions Judge relied on the testimonies, of Janaklal (PW-7) and Chhannu (PW-8) and held that it was proved that the deceased was assaulted by the above 2 appellants, received multiple serious injuries and succumbed to those injuries, therefore, the appellants were liable for punishment as above. However the 3rd accused namely- Bhuneshwar @ Bhakla (A-2) was acquitted because Chhannu (PW-8), in Para-19 of his cross-examination, could not explain the omission in his 161 Cr.P.C. statement (Ex. -D/2) relating to involvement of this accused.

Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellants, argued that Janaklal (PW-7) and Chhannu (PW-8) were not reliable witnesses; therefore, the conviction based on their testimonies cannot be sustained. For appellant- Sadhram @ Sadhu (A-3), she argued that no overt act has been attributed to Sadhu in the F.I.R., whereas, the F.I.R. was lodged by an eye-witness, therefore, the above omission was fatal to the prosecution.

On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned counsel for the parties at length and have also perused the records of the sessions case.

Janaklal (PW-7) deposed that in the fateful night, Chhabidas (deceased), Khorbahra (A-1), Bhakla (A-2), Sadhu (A-3), Bunwa and Chhannu (PW-8) were present along with him in Mahamaya Temple. They were gambling there. He lost Rs. 220/- in gambling. Chhannu (PW-8) also lost. Chhabidas (deceased) was lying near the place of gambling. He was not participating in gambling as he used to provide money for gambling. On the money given by him, he used to take interest at the rate of 20% per week. Some quarrel begun there and the appellants started assaulting the deceased by lathi. They gave repeated blows. The 3rd accused Bhakla was playing cards with him. He (PW-7) immediately ran away.

Chhannu (PW-8) also deposed that while gambling, a marpit begun in which the appellants assaulted the deceased by lathi. He asked Janaklal (PW-7) to call their family members. The 3rd accused Bhakla, then picked up stone and threw it on the head of the deceased. In fact, he deposed about involvement of all the accused persons in the incident. In Para-19 of his cross-examination, he was faced with the omission which he made in his 161 Cr.P.C. statement (Ex. -D/2) in which he did not attribute the above role allegedly played by Bhakla (A-2). Bhakla was therefore acquitted by the Sessions Court.

Janaklal (PW-7) lodged the F.I.R. (Ex. -P/14). The incident took place in the intervening night of 26th - 27th of February, 1992 and the F.I.R. (Ex. -P/14) was lodged by Janaklal (PW-7) at 8.00 a.m. on 27.2.92. In the F.I.R. (Ex. -P/14) he has given all the details of the incident and has very specifically mentioned that the deceased was assaulted by appellant- Khorbahra. No act has been attributed to appellant- Sadhram @ Sadhu in the F.I.R. On the contrary, it has been mentioned that Sadhram was roaming outside the temple at the time of the incident. Not a single word relating to his overt act has been mentioned by Janaklal (PW-7) in the F.I.R. (Ex. -P/14).

The F.I.R. is the first hand information relating to a criminal case, therefore contents thereof are important. If the F.I.R. is lodged by an eye-witness, it further assumes more importance. If the eye-witness had seen the entire incident and has deposed before the Court giving all details and the F.I.R. lodged by him also contains all details, alleging the individual act done by each accused, omission relating to one of them in the F.I.R. would be fatal to the prosecution. Janaklal (PW-7) has been cross-examined on account of above omission in Para-34 of his evidence. He claimed that he had mentioned before the police while-lodging the report that appellant- Sadhu had also participated in assaulting the deceased, and in fact, the deceased was assaulted by all the 3 accused persons. Thus, no satisfactory explanation relating to the above vital omission in the F.I.R. (Ex. -P/14) was given by Janaklal (PW-7).

Mr. Arvind Dubey has argued that Sadhram (A-3) shared common intention with Khorbahra (A-1), therefore, the conviction with the aid of Section 34 IPC was fully justified. We have examined the case of Sadhram in light of the above submission made by the learned Panel Lawyer.

Section 34 has been enacted on the principle of joint liability in the doing 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 u/s 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are 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 crime. To constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them. This is what the Supreme Court said on many occasions while interpreting the provisions of Section, 34 IPC. Therefore, the acts may be different in character, but it should be proved that they must have been actuated by one and the same common intention in order to attract the provisions of Section 34 IPC.

In the instant case, in the F.I.R. (Ex. -P/14), it has been mentioned that all the accused persons and the witnesses had gone to Mahamaya Temple for gambling by playing cards. When appellant- Sadhu could not win, he got up and started roaming outside the temple premises, and as per the contents of the F.I.R. (Ex. -P/14), appellant Khorbahra started assaulting the deceased. Therefore, in the above facts and circumstances, it cannot be gathered that, either before the assault was opened or on the spur of moment, Sadhram shared common intention with Khorbahra. We are of the view that in light of the above evidence, it cannot be held that appellant- Sadhram shared common intention with appellant- Khorbahra to commit murder of the deceased.

For the foregoing reasons, we are unable to sustain the conviction of appellant- Sadhram @ Sahu (A-3) and the same deserves to be set-aside.

In the result, Criminal Appeal No. 1098/96, filed by appellant- Sadhram @ Sadhu, is allowed. The conviction and sentence awarded to him u/ss. 302/34 IPC are set-aside. He is acquitted of the, charges framed against him. So far as Criminal appeal No. 844/96, filed by appellant-Khorbahra, is concerned, we do not find any merit in the appeal. The appeal filed by him, therefore, is liable to be dismissed and is hereby dismissed.