Baiga @ Nanku vs State Of Chhattisgarh

This criminal appeal preferred by the appellants under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 20.04.2001, passed by Additional Sessions Judge, Surajpur, District Sarguja in Sessions Trial No. 369/1999 whereby the appellants have been convicted for offences punishable under Sections 304 part II read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for 7 years.

Case of the prosecution, in brief, is that on 27.05.1999 on account of Dashahara festival, a programme was organized in village Semrakala where Guddi Bai (PW-1) and Sitabai (PW-9) had gone to see the programme. At about 9.00 o’clock husbands of Sitabai and Guddibai namely Jokhan and Bannuram had also gone to see the programme. During programme, Vifan told to Jokhan that day before yesterday, he had taken large quantity of pork than you on this they were quarreling with each other and thereafter Vifan caught hold Jokhan and his younger brother accused Baiga came with Gainda (stick) and assaulted on the head of Jokhan as a result of which he sustained injuries and blood was oozing and he fell on the ground and became unconscious. It is alleged that when somehow the accused woke up again Baiga assaulted on the temple of Jokhan and when Sitabai intervened in the scuffle then accused Baiga committed marpit with hands and fists to Sitabai. It is further alleged that on account of over night, the report could not be lodged on the same day. On the next day, ie. on 28.05.1999 the FIR (Ex.P-11) was lodged in police station Pratappur under Crime No. 98/99 for the offence punishable under Section 307 read with section 34 IPC. After registration of offence, Jokhan was taken to hospital, thereafter, he was sent to District Hospital, Ambikapur for treatment and on 3.1.1999 he succumbed to death. The offence was registered against the appellant under Section 302/34 IPC. The prosecution after usual investigation has submitted the charge sheet before the concerning Judicial Magistrate First Class- Surajpur, who in turn committed the case to the Court of Sessions Judge, Surajpur.

Learned Additional Sessions Judge after perusal of the records reached the conclusion that there was sufficient material to frame charges under Section 304 part II IPC. The accused/appellants denied the charges and claimed to be tried.

The prosecution in order to prove the guilt of the appellants examined in all 12 witnesses namely Guddi (PW-1),Lalman (PW-2), Bannu (PW-3), Dr. Narayan Prasad Paikra (PW-4), Dr. Ashok Kumar Jain (PW-5), Head Constable Krishna Singh (PW-6), Basu (PW-7), Smt. Subhadra Paikra (PW-8), Sitabai (PW-9), Phuleshwari (PW-10), Devnarayan Ram (PW-11) and Anand Kumar Lohvanshi (PW-12). The prosecution to prove the guilt of the appellants have exhibited the documents statement of Lalman (Ex.P-1), statement of Bannu (Ex.P-2), MLC report (Ex.P-3), OPD slip (Ex.P-4), Postmortem of deceased (Ex.P-5),MLC report of injured Jokhan (Ex.P-6), MLC of injured Sitabai (Ex.P-7), report of Dr. (EX.P-7A), property seizure (Ex.P-8), arrest memo of Baiga (Ex.P-9), arrest memo of vifan (Ex.P-10), FIR (Ex.P-11), memorandum of Baiga (Ex.-11), report and crime detail form (Ex.P-12), Map and seizure memo (Ex.P-13), Panchayatnama (Ex.P-13), Merg intimation (Ex.P-14), memo dated 18.08.99 sent to Forensic Science Laboratory (Ex.P-15). Statements of accused/appellants have been recorded under Section 313 Cr.P.C., in which they denied the allegation leveled against them and pleaded innocence and false implication.

Learned trial Court after appreciating evidence, material on record has recorded its finding that the offence under Section 302 /34 IPC is not made out but offence under Section 304 part II IPC has been made out against the appellants, therefore, they have been convicted and sentenced them RI for 7 years. The appellants remained in jail from 24.05.1999 till the date of judgment 20.04.2001, thereafter, this Court has granted bail to the appellants on 05.07.2001. Thus appellants remained in jail for more than 2 years and 2 months.

Being aggrieved with the judgment of conviction and order of sentence of the trial Court the appellants have preferred the appeal before this Court.

During pendency of the appeal, Appellant No.1 Baiga @ Nanku died on 23.07.2014 as reflected from the order sheet dated 21.07.2022, therefore, the appeal so far as appellant No.1 Baiga @ Nanku is abated.

Learned counsel for the appellant No.1 would submit that Baiga since deceased assaulted injured Jokhan who subsequently died and there is no evidence brought on record against the present appellant with the add of section 34 IPC which is not tenable and prayed for quashing of the judgment of conviction and order of sentence. He would further submit that the prosecution witnesses Sitabai in examination-in-chief has stated that she was not aware at the time of incident who catch hold her husband and who has assaulted her husband but in her statement recorded under Section 161 CrPC before the Police she has stated that one accused namely Vifan hold her husband and another accused Baiga assaulted her husband with Gainda (bamboo stick).He would further submit that there are contradictions and omission in the statement recorded under Section 161 CrPC and the court statement and in the Court statement she has not stated anything against the present appellants, therefore, the appellant is entitled to get benefit of doubt as the prosecution was unable to prove the guilt of the accused to extract section 34 IPC. He would rely upon the judgment of the Hon’ble Supreme Court in the matters of Shishpal @ Shishu vs. State (NCT of Delhi) 2022 (9) SCC 782 and Chhota Ahirwar vs. State of Madhya Pradesh 2020 (4) SCC 126 and would pray for quahsment of judgment of conviction and order of sentence. Lastly, he would submit that the appellant No.2 remained in jail for more than 2 years and 2 months wherein maximum sentence awarded to him is 7 years, looking to the period already remained in jail, his sentence may be reduced to the period already undergone.

On the other hand, learned counsel for the State would submit that though the appellant No.2 was charged for offence under Section 302 IPC, but after appreciation of evidence on record, learned trial Court has rightly convicted the appellants for the offence under Section 304 Part II IPC which does not suffer from perversity or illegality warranting interference and would pray for dismissal of the appeal.

I have heard learned counsel for the appellant and perused the records.

Since the appellant No.1 Baiga has already expired who assaulted the deceased with Gaida (bamboo stick), therefore, this Court has to examine whether the present appellant can be convicted with the aid of section 34 IPC in the present facts and circumstances of the case or not.

To determine this question, this Court has to look into the evidence of prosecution witness Sitabai (PW-9), she has categorically stated in examination-in-chief that she was not aware who catch hold of her husband and who had assaulted him. In the cross-examination by the prosecution, this witness has stated that accused Vifan catch hold her husband and accused Baiga assaulted her husband with Gaida (bamboo stick). This witness was cross-examined wherein she has admitted that at the time of incident, she was not present there. She has also admitted that at the time of lodging of FIR so many people of village were present there. She has also stated that what happened there she did not know as she was in her house.

There is contradiction and omission in the statement recorded under Section 161 CrPC and in the Court statement, therefore, this Court has to consider whether the appellant can be convicted on the basis of statement recorded under Section 161 CrPC or not. This issue has come up for consideration before the Hon’ble Supreme Court in the case of Ramprasad vs. State of Maharashtra 1999 (5) SCC 30 wherein the Hon’ble Court has held in paragraph-15 as under:-

Be that as it may, the question is whether the court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.

The trial Court while recording the judgment of conviction and order of sentence that the assault was made by appellant No.1 Baiga on the deceased and appellant No.2 Vifan only catch hold the deceased on the basis of statement recorded under Section 161 CrPC whereas in the Court statement she has denied the fact and she has turned hostile by the prosecution. Even the Court statement she has stated that she was not present at the place of occurrence, who caught hold her husband and who assaulted the deceased. In absence of any cogent evidence brought on record by the prosecution with regard to common intention the finding recorded by the trial Court convicting the appellant No.2 with the aid of Section 34 IPC is not sustainable.

The Hon’ble Supreme Court in the case Chhota Ahirwar vs. State of Madhya Pradesh reported in 2020 (4) SCC 126 wherein the Hon’ble Supreme Court has examined Section 34 IPC and held in paragraph 26 and 27 which is as under:-

To attract Section 34 of the Indian Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention [see Ashok Basho (2010) SCC 660 (669)]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh reported in AIR 1925 Privy Council 1, “they also serve who stand and wait”.

Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other.

The Hon’ble Supreme Court in the case of Shishpal @ Shishu vs. State (NCT of Delhi) 2002(9) SCC 782 wherein the Hon’ble Supreme Court has held in paragraph 14, 21, 22, 23, 24 and 27 which are as under:-

Both the appellants have been charged only based upon the rule of evidence available under Section 34 of the IPC. Section 34 does not constitute an offence by itself, but creates a constructive liability. The foundational facts will have to be proved by the prosecution. Not only the occurrence, but the common intention, has to be proved beyond reasonable doubt. In Jasdeep Singh alias Jassu vs. State of Punjab, (2022) 2 SCC 545 this Court considered the scope of Section 34 IPC as follows (SCC pp. 554-56, paras 17-27).

“17. We shall first go back into the history to understand Section 34 IPC as it stood at the inception and as it exists now.

Old Section 34 IPC

New Section 34 IPC

Each of several persons liable for an act done by all, in like manner as if done by him alone.- When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act were done by him alone.

Acts done by several persons in furtherance of common intention- When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted.

It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.

The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offence.

Normally, in an offence committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places. Therefore, it has to be seen on a case-to-case basis.

The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.”

Considering the fact, evidence brought on record, it is quite vivid that in the present case the prosecution is unable to produce any evidence on record with regard to common intention of the appellants to commit the offence and no adequate connectivity of the appellants, intention which means to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge has been brought on record against appellant No.2 Vifan. On the contrary Sitabai (PW-9) has categorically stated in her statement recorded in the Court wherein she has stated that she did not know who caught her husband and assaulted him at the time of incident. In this circumstance, I am of the considered opinion that trial Court committed error in holding appellant No.2 Vifan of the offence under Section 304 Part II IPC. Accordingly, his conviction under Section 304 Part II IPC is set aside. He is acquitted of the charges. Appellant No.1 Vifan is reported to be on bail. His bail bond shall continue for a further period of six months from today in view of Section 437-A of Cr.P.C.

Accordingly, this criminal appeal stands allowed.