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Judgment
S.K. Awasthi, J
Appellants (Mukesh s/o Jankilal Balai, Badrilal s/o Rodaji Balai and Mukesh s/o Dulaji Balai) have preferred these criminal appeals under Section
374 of the Code of Criminal Procedure, 1973 being ag-grieved by judgment dated 5th January, 2013 passed by Additional Sessions Judge, Agar,
District Shajapur (MP) in Sessions Trial No.179/2011, whereby they have been convicted for offence punishable under Section 302 read with Section
34, Section 341 read with Sec-tion 34 of the Indian Penal Code, 1860 and each of them has been sentenced to undergo rigorous impris-onment for life
with fine of Rs.5,000/- and one month simple imprisonment respectively. Appellant Badrilal has also been convicted under Section 323 of the Indi-an
Penal Code, 1860 and has been sentenced to under-go six month rigorous imprisonment. In case of de-fault in payment of fine amount, each of them
has been sentenced to further undergo two months simple im-prisonment.
Appellant Mukesh s/o Jankilal Balai has filed Criminal Appeal No.89/2013, appellant Badrilal s/o Rodaji Balai has filed Criminal Appeal No.95/2013
and appellant Mukesh s/o Dulaji Balai has filed Criminal Appeal No.128/2013 against the conviction and sentence awarded to them by the trial Court,
as men-tioned above. Since criminal appeals are arising out of the same impugned judgment, therefore, they are be-ing disposed of by this common
judgment.
The prosecution story, in short, is that on 29.05.2011 marriage ceremony of Ritu, daughter of Narayan was going on in which, co-accused Badrilal
and son-in-law of Narayan had gathered. In the mar-riage ceremony, co-accused persons Mukesh s/o Dula and Mukesh s/o Janki were also present.
It is alleged that Complainant Umrao and deceased Shyamlal were taking meal in the feast. Mukesh s/o Dula was serving Puree ( ) in the feast.
At about 11.30 PM, a dispute arose between Badrilal, Shyam, Mukesh s/o Dula and Umrao; during such dispute, Badrilal slapped com-plainant
Umrao; thereafter Badrilal and Mukesh slapped Shyamlal and they became impersonate to fight due to which Umrao and Shyamlal left the feast and
hardly went ahead 20-25 foot, then Mukesh s/o Dula and Mukesh s/o Janki caught hold Shyamlal; and Badrilal inflicted him by means of knife. Due to
which, Shyamlal sustained injuries (1) below right Iliac Crest and (2) right inguinal region; he fell down on the ground; and blood was oozing. The
incident was seen by Radheshyam, Jagdish and Santosh. Accused persons fled away from the spot. Umraolal took injured Shyamlal to the hospital,
but after examination, doctor declared injured Shyamlal dead. The incident was re-ported to the Police. On the basis of which, FIR bear-ing Crime
No.85/2011 was registered at Police Station Kanad, District Shajapur (MP). Panchnama of dead body was prepared; and the dead body of Shyamlal
was sent to the Hospital for postmortem.
During the investigation, Police visited the spot and drawn spot map Ex.P/5; blood stained and simple soil were seized from the spot; and statement
of the witnesses were recorded. Accused persons were arrested. On the basis of their memos various articles were seized and were sent to the
Forensic Science Lab-oratory for its examination. After completion of the in-vestigation, charge sheet was filed before the Court of Judicial
Magistrate First Class, Agar, District Shajapur (MP), who committed the case to the Court of Ses-sions; and ultimately it was transferred to the Court
of Additional Sessions Judge, Agar, District Shajapur (MP).
The appellants abjured their guilt and they took a plea that they are innocent and were falsely im-plicated in the matter. However, no evidence was
pro-duced by them in defence.
To bring home the charges framed against the accused persons, the prosecution has examined as many as eleven witnesses, namely complainant
Um-raolal (PW-1), Dr. R.L. Malvi (PW-2), Assistant Sub In-spector of Police Madanlal Sharma (PW-3), Rad-heshyam (PW-4), Kesar Singh (PW-
5), Govardhan Singh (PW-6), Pavitrabai (PW-7), Babulal (PW-8), Bagdu (PW-9), Head Constable Ranveer Singh (PW-10) and Investigating Officer
Manish Mishra (PW-11). Out of the aforesaid witnesses, Radheshyam (PW-4), Kesar Singh (PW-5) and Govardhan Singh (PW-6) have not
supported the prosecution case and turned hostile.
The trial Court, after considering the evi-dence adduced by the parties, convicted the accused persons for commission of offence punishable under
Sections 302/34 and 341 of IPC and accused Badrilal has also been convicted under Section 323 of IPC; and sentenced them, as mentioned in
preceding paragraph.
We have heard learned counsel for the par-ties, perused the impugned judgment and record of the trial Court.
First of all, it is to be considered as to whether death of deceased Shyamlal s/o Bagduji was homicidal in nature or not. In this connection, evi-dence
given by Dr. R.L. Malvi (PW-2) is important one. Dr. R.L. Malvi (PW-2) performed postmortem on the body of the deceased Shyamlal and had
given a report Ex.P/8. According to Dr. R.L. Malvi (PW-2), following injuries were found on the person of deceased: -
(1) Abrasion on left side of mandible size 6 cm x ½ cm x skin deep;
(2) Multiple small abrasion over left side upper part of neck;
(3) Brownish red contusion size 6 cm x 1 cm above left nipple;
(4) Brownish red contusion above 3 cm to Injury No.3 size 4 cm x 1 cm;
(5) Abrasion over post part left of elbow size 2 cm x 1 cm x skin deep;
(6) Incised wound right on inguinal region mid part size 3 cm x 1 cm x vessels deep cutting femoral vessels and muscles; and
(7) Incised would below right Iliac crest size 2 ½ cm x 1 cm x 3 cm oblique present.
Dr. R.L. Malvi (PW-2) opined that the injuries found on the person of deceased were antemortem; In-jury No.1 to Injury No.5 were caused by hard
and blunt object whereas Injuries No.6 and 7 were caused by sharp cutting object; and the cause of death of de-ceased was due to Injury No.6, which
the deceased sus-tained and blood was oozing. The postmortem report of the deceased Ex. P/8 shows that injury was fatal and sufficient to cause his
death in natural course of his life.
Complainant Umraolal (PW-1), who is the author of the FIR, deposed that on the date of the inci-dent, marriage ceremony of Ritu daughter of
Narayan was going on and at about 11.00 PM, he along with Shyamu were taking meal in the ceremony. Accused Mukesh s/o Dula was serving
Puree ( ) in the feast. Even on request of Shyamlal, when he did not serve Puree ( ), then he asked him the reason for not serv-ing the said
food article. Hearing this, Mukesh s/o Dula started hurling abuses. Thereafter, Badrilal brother of Keswal (who was sitting in front row) came there
and slapped him (Umraolal) and started fighting with him. Then, complainant Umraolal and Shyamlal were leaving the dinning area, at the same time,
Badri-lal uttered words “ †and accused persons Mukesh s/o Jankilal and Mukesh s/o Dula caught hold Shyamu thereafter
accused Badrilal as-saulted him by means of knife, due to which he sus-tained injuries on his waist. He shouted, then Rad-heshyam rushed towards
them. Complainant and Radheshyam took injured Shyamu to some distance and injured Shyamu was laid on a Cot. After some-time, injured Shyamu
succumbed to injuries. Then he informed the incident to Police on telephone. There-after, Police reached on the spot and the deceased was taken to
hospital, he lodged FIR vide Ex.P/2.
Although in Court statement, complainant Umraolal (PW-1) deposed that on the date of the inci-dent in night itself, he informed the incident to the
Po-lice on telephone; and Police came to the spot within a period of half an hour and also prepared some panch-namas, but Assistant Sub Inspector of
Police Mr. Madanlal Sharma (PW-3), who recorded the FIR Ex.P/2 denied the aforesaid fact in paragraph No.4 of his cross examination. According
to him, the incident was reported by Umraolal at 07.20 AM on 30.05.2011; and thereafter, Police reached on the spot. However, there is no material
available on record to substantiate the statement of Umraolal that he informed the inci-dent to the Police on the date of incident. In these cir-
cumstances, the submission made by the learned coun-sel for the appellant (s) is not acceptable, that original FIR has been suppressed by the Police
and the appel-lant (s) have been falsely implicated in the present case.
From the statement of complainant Umrao, it is clear that the incident took place on 29.05.2011 at about 11.30 PM and the information was given
to the Police at around 07.20 AM on 30.5.2011, whereas the distance of the Police Station from the place of occur-rence is 38 kilometers and
explanation was given in the FIR that due to night hours and lack of transporta-tion, FIR could not be recorded early; and in these cir-cumstances, the
aforesaid delay cannot be said to be fatal for the prosecution.
FIR clearly mentions name of present appellants / accused persons for commission of offence described herein above. The prosecution witness,
who is also complainant in the FIR i.e. Umrao (PW-1) and other incidental witnesses mentioned in the FIR have corroborated the prosecution story
verbatim and there are no material contradiction or omission in their testimonies which lends much credibility to their statements. There is no material
on record which indicates that the complainant had any previous enmity with the accused persons. Presence of injury has been affirmed by
postmortem report Ex.P/8. Statement of Umrao (PW-1) clearly establish that Badrilal gave a blow of knife to Shyamlal due to which he sustained
injury and succumbed on the spot. Therefore, we find no perversity or deficiency in the impugned judgment dated 05.01.2013 passed by the trial Court
which may warrant interference by this Court with respect to appellant Badrilal.
Mr. S.K. Vyas, learned Senior Counsel for appellant Mukesh s/o Jankilal Balai and Mr. Vivek Singh, learned counsel for appellant Mukesh s/o
Dulaji Balai have submitted that there is no specific evidence as regards the role played by accused Mukesh s/o Jankilal and accused Mukesh s/o
Dulaji Balai. It is the prosecution version that accused Badrilal s/o Rodaji Balai had knife in his pocket. He suddenly brought out and stabbed the
deceased only once on his abdomen. The sole eye witness Umraolal (PW-1) accepted in his cross examination that he has no idea as to why and from
where co-accused Badrilal s/o Rodaji Balai took out knife. If any witness would have seen knife, the witnesses and other nearby standing persons will
try to snatch knife from accused Badrilal. Thus, from the evidence, it is clear that the incident took place at the spur of moment and accused Badrilal
was not having knife openly, and therefore, appellant Mukesh s/o Jankilal Balai and another accused Mukesh s/o Dulaji Balai did not have any
knowledge that accused Badrilal s/o Rodaji Balai is in possession of knife. Therefore, no common intention can be attributed to either appellant
Mukesh s/o Jankilal Balai or accused Mukesh s/o Dulaji Balai. In this regard, learned Senior Counsel for appellant Mukesh s/o Jankilal Balai and
learned counsel for appellant Mukesh s/o Dulaji Balai have placed reliance on judgment delivered by Hon'ble Supreme Court in the case ofR amashish
Yadav v. State of Bihar reported in 1999 (8) SCC 555 and case of Sripati v. State of Karnataka reported in (2009) 11 SCC 660.
Now, dealing with the contention of the learned counsel for the appellant that the facts which have come on record do not satisfy the ingredients
of Section 300 of IPC rather the act committed by the accused falls within exception of Section 300 of IPC. In order to fortify this contention, learned
counsel for the appellants have invited the attention of this Court to the fact that there was no premeditation for causing the blow on the abdomen of
the deceased which is pre-condition for attracting the conviction for the offence punishable under Section 302 of IPC. The fact that all of a sudden,
altercation took place between the deceased and the appellants, as a result of which, accused Badrilal gave a blow of knife to deceased Shyamlal.
It is an admitted fact that there was no dispute between the appellants and the deceased earlier to the incident. All of a sudden, altercation took
place between both the parties. As it is borne out from the evidence of Umraolal (PW-1), who is an eye witness of the incident that, without
premeditation and in the heat of passion, the incident occurred. As a result of which, accused persons Mukesh s/o Jankilal and Mukesh s/o Dula
caught hold Shyamlal thereafter accused Badrilal gave a blow of knife to deceased Shyamlal, due to which, he sustained injuries on his abdomen and
succumbed on the spot. Thus, according to us, the present case would rest under Exception Four to Section 300 of Indian Penal Code, 1860.
In the case of Sripati v. State of Karnataka (supra), Hon'ble Apex Court observed in paragraph No.9 of the judgment, as under: -
“9. “5. Section 34 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. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred form the
circumstances appearing from the proved facts of the case and the proved circumstances. 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 mind of all the accused persons to commit the offence for which they
are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents
of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.
As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element
for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically
similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
The Section does not say ""the common intention of all"", nor does it say ""and intention common to all"". Under the provisions of Section 34 the essence of the
liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a
result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused
is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be
difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by
each of them. As was observed in Ch. Pulla Reddy and others v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been
caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.â€
In the case of Ramashish Yadav v. State of Bihar (supra), Hon'ble Apex Court observed in paragraph No.3 of the judgment, as under: -
“3. Coming to the question of applicability of Section 34 for the murder of Tapeshwar, we find from the evidence of the three eye witnesses that while Ram Pravesh
Yadav and Ramanand Yadav caught hold of Tapeshwar, accused Samundar Yadav and Sheo Layak Yadav came with gandasa and gave blows on the head of
Tapeshwar, as a result of which Tapeshwar died, Section 34 lays down a principle of joint liability in the doing of a criminal act. The absence of that liability is to be
found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of
Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from
conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting
of minds. The prior concert or meeting of mind may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration
made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premediated concert. This
being the requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of
Tapeashwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the
accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar yadav and Sheo Layak Yadav.â€
In the present case, from perusal of statement of eye witness Umraolal (PW-1), it appears that he along with deceased Shyamlal were taking
meal in marriage ceremony of Ritu daughter of Narayan; in the feast, Mukesh s/o Dula was serving Puree (iqMh). Even on request of Shyamlal,
when he did not serve Puree ( ), then Shyamlal asked as to why he is not serving Puree to him. At that moment, accused Mukesh s/o Dula
started hurling abuses. After that, Badrilal came there and slapped Shyamlal. Umraolal started avoiding him. Then Umraolal and Shyamlal were
leaving the dinner area, at that moment, Badrilal uttered words “ †and accused persons Mukesh s/o Jankilal and Mukesh s/o
Dula caught hold Shyamu thereafter accused Badrilal assaulted him by means of knife. This statement of Umraolal (PW-1) could not be shattered in
his cross examination, which clearly indicates that accused persons Mukesh s/o Jankilal and Mukesh s/o Dula were having common intention with
accused Badrilal s/o Rodaji Balai to cause injuries to deceased Shyamlal; and thereafter accused Badrilal gave him a single blow of knife. Therefore,
contention raised by learned Senior Counsel for appellant Mukesh s/o Jankilal Balai is not acceptable, that they (Mukesh s/o Jankilal and Mukesh s/o
Dula) were not having any knowledge that accused Badrilal was having any knife and he will stab deceased Shyamlal. Nothing has come in the cross
examination of Umraolal (PW-1) to suggest that, accused Badrilal was having knife in his pocket; and accused persons Mukesh s/o Jankilal and
Mukesh s/o Dula were not having any knowledge that accused Badrilal will cause injury to deceased Shyamlal by means of knife. Hence, trial Court
has not committed any error in convicting appellants (Mukesh s/o Jankilal and Mukesh s/o Dula) with the aid of Section 34 of the Indian Penal Code,
1860.
Resultantly, Criminal Appeal No.95/2013 filed by appellant Badrilal s/o Rodaji Balai succeeds in part. Conviction of appellant Badrilal s/o Rodaji
Balai is hereby modified and he is convicted under Section 304-I of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years.
His conviction under Section 323 of Indian Penal Code, 1860 is maintained. Criminal Appeal No.89/2013 filed by appellant Mukesh s/o Jankilal Balai
and Criminal Appeal No.128/2013 filed by appellant Mukesh s/o Dulaji Balai succeed in part. Conviction of both the appellant is hereby modified and
they are convicted under Section 304-I read with Section 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years.
Appellant Badrilal s/o Rodaji Balai is in custody during the trial and also pendency of the criminal appeal. Office is directed to make arrangement for
issuance of supersession warrant, so that appellant Badrilal s/o Rodaji Balai can be released from Jail, if he has completed the jail sentence of ten
years RI and deposited the fine amount. Appellants Mukesh s/o Jankilal and Mukesh s/o Dula are on bail. They are directed to surrender before the
trial Court immediately, so that they may be send to custody to serve the remaining jail sentence. Â
Let the original copy of the judgment be re-tained in the file of Criminal Appeal No.89/2013 and photocopy of the judgment be retained in
connected Criminal Appeal No.95/2013 and Criminal Appeal No.128/2013; and a copy of the judgment with record of the case be send to the trial
Court for taking appro-priate action, in accordance with law.