Bhisham Baghel vs State Of Chhattisgarh

Sanjay K. Agrawal, J

These are two Criminal Appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973 ('CrPC'). One is Cr.A. No.1029/2016 preferred by A-1 Bhisham Baghel and A-3 Umesh Baghel and the other is Cr.A No.1110/2016 filed by A-2 Heerasingh Baghel.

Assail by the Appellants is to the common Judgment and Order dated 4.8.2016 passed by Additional Sessions Judge, Saraipali, District Mahasamund in Sessions Trial No.45/2014, by which each of them has been convicted for the offences punishable under Sections 302/34 & 323/34 of the Indian Penal Code, 1860 ('IPC') and sentenced in the following manner:-

Conviction

Sentence

u/S. 302/34 of IPC

Life Imprisonment and fine of Rs.2000/- and in default of payment of fine, to undergo additional S.I. for 2 months.

u/S. 323/34 of IPC

S.I. for 3 months.

With a direction to run both sentences concurrently.

Prosecution case, in brief:

On 28.4.2014 at around 8:00 a.m. in Village Jamdarha under Police Station Basna, District Mahasamund, the three Appellants herein, in furtherance of their common intention, assaulted Teerathram Baghel with iron rod, bamboo stick and katar (dagger) on account of which, he suffered grievous injuries and died and they also voluntarily caused hurt to Ku. Bhuvaneshwari (PW-3) and Ku. Malti (PW-1), thereby committed the said offences.

According to the prosecution, on the date and time of the incident, the Appellants followed Teerathram Baghel, the deceased, when he was going to Basna on his Platina motorcycle along with his two daughters, Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3) as pillion riders. When they reached near Jamdarha jungle, the Appellants dashed their car to the motorcycle which the deceased was driving and on account of which, the deceased and her two daughters fell down. The Appellants then came out of their car and A-2 Heerasingh Baghel who was carrying an iron rod and A-3 Umesh Baghel who was armed with a dagger (katar) chased the deceased and assaulted him to death by using the said weapons whereas A-1 Bhisham Baghel is said to have assaulted Ku. Bhuvaneshwari (PW-3) with a bamboo stick on her head on account of which, she sustained injuries and fell unconscious. Ku. Malti (PW-1) also received simple injuries on account of falling down on the ground from the motorcycle which was dashed by the Appellants by their car.

The matter was reported by Ku. Malti (PW-1) at Police Station Basna on which Merg Intimation was recorded vide Exhibit P-2 and FIR was registered vide Exhibit P-1. Spot Map was prepared vide Exhibit P-37 and Nazri Naksha was prepared by Patwari vide Exhibit P-31. Inquest proceeding was conducted vide Exhibit P-5 and the dead body of deceased Teerathram Baghel was subjected to post-mortem which was conducted by Dr. S.R. Sidar (PW-11) vide Exhibit P-15 in which the cause of death was opined to be due to hemorrhage and shock as a result of neck injuries and the nature of death was homicidal. The two injured witnesses, Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3) were also medically examined vide Exhibits P-13 & P-14 respectively. Pursuant to the memorandum statement of A-1 Bhisham Baghel recorded vide Exhibit P-21, a bamboo stick was recovered vide Exhibit P-24. Similarly, pursuant to the memorandum statement of A-2 Heerasingh Baghel recorded vide Exhibit P-19, an iron was seized from him vide Exhibit P-22. Likewise, a dagger (katar) was recovered vide Exhibit P-23 pursuant to the memorandum statement of A-3 Umesh Baghel recorded vide Exhibit P-20. Seizure of certain other articles was also made. Though seized articles were sent for forensic examination but no FSL report has been brought on record.

After completion of the trial, the Appellants were charge-sheeted for the offences punishable under Sections 302/34 & 307/34 of IPC as well as under Section 25/27 of the Arms Act and the matter was put to trial before the Court below where the charges were read out and explained to the Appellants who abjured their guilt, took a plea of false implication, and prayed for trial.

During the course of the trial, in order to bring home the offence, the prosecution has examined as many as 27 witnesses as PW-1 to PW-27 and exhibited 48 documents from Exhibits P-1 to P-48. Statements of the Appellants were recorded under Section 313 of CrPC, in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in their defence, though no witness has been examined but they have relied upon the statements of Chain Singh Bariha and Bhuvaneshwari as Exhibits D-1 & D-2.

After conclusion of the trial, the Trial Court, by impugned Judgment and Order dated 4.8.2016, on appreciation of the evidence, both oral and documentary, available on record, while acquitting the Appellants from the offences under Sections 307/34 of IPC and Section 25/27 of the Arms Act, convicted the Appellants for the offences under Sections 302/34 & 323/34 of IPC and sentenced them in the manner as shown at the table in paragraph-2 of this judgment, which led to the filing of the present criminal appeals by the three Appellants herein.

Submissions of learned Counsels for parties:

Mr. Satya Prakash, learned Counsel appearing for A-1 Bhisham Baghel & A-3 Umesh Baghel and Mrs. Indira Tripathi, learned Counsel appearing for A-2 Heerasingh Baghel, would jointly submit that the Trial Court is absolutely unjustified in convicting the Appellants for the offences charged, as the seized articles were not sent for chemical examination and the prosecution case is solely based on the evidence of the two injured witnesses i.e., Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3) who are daughters of the deceased and whose testimonies cannot be relied upon being related and interested witnesses, in absence of corroboration. In that view of the matter, all the three Appellants are entitled for acquittal and the appeal deserves to be allowed.

Mr. Shaleen Singh Baghel, learned Deputy Government Advocate, per contra, would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the two injured eye-witnesses, Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3), are reliable witnesses and their testimonies cannot be put to doubt. So far as A-3 Umesh Baghel is concerned, a dagger has been seized from him and the all the injuries caused to the deceased, as per the post-mortem report, are incised wounds caused by dagger used in the commission of the offence. In view of the testimonies of Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3), who are also the injured eye-witnesses, the conviction of the three Appellants deserves to the maintained and the appeal is liable to be dismissed.

Discussion and Analysis:

We have heard learned Counsels for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

As regards the question whether the death of deceased Teerathram Baghel was homicidal in nature, the Trial Court has answered the said question in affirmative relying upon the statment of Dr. S.R. Sidar (PW-11) who has conducted and proved the post-mortem (Exhibit P-15) in which the cause of death of deceased Teerathram Baghel has been opined to be due to hemorrhage and shock as a result of neck injuries and the nature of death was homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and which is neither perverse nor contrary to record. We, therefore, affirm the said finding of the Trial Court holding that the death of deceased Teerathram Baghel was homicidal in nature.

The case of the prosecution is based on oral as well as circumstantial evidence. Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3) are daughters of deceased Teerathram Baghel, who were travelling as pillion riders along with the deceased who was driving Platina motorcycle on the date and time of the incident. According to the statement of Ku. Malti (PW-1), a Maruti car in which the three Appellants were sitting, dashed their motorcycle and they fell down. The three Appellants then came out of the said car, with a bamboo stick holding by A-1 Bhisham Baghel, an iron rod carrying by A-2 Heerasingh Baghel and A-3 Umesh Baghel was armed with dagger. Her father, the deceased, was assaulted by A-2 Heerasingh Baghel with iron rod and A-3 Umesh Baghel by dagger on account of which, he sustained grievous injuries and died. Her sister, Ku. Bhuvaneshwari (PW-3), was also assaulted by A-1 Bhisham Baghel with a bamboo stick on account of which, she received injuries on her head.

Similar is the statement of Ku. Bhuvaneshwari (PW-3). However, she has been confronted in her statement recorded under Section 161 of CrPC (Exhibit D-2) in which she has stated that though from the said car three persons came out but only A-2 Heerasingh Baghel assaulted her father, the deceased, by iron rod and A-3 Umesh Baghel assaulted him by dagger and that A-1 Bhisham Baghel assaulted her by a bamboo stick on account of which, she received simple injuries.

So far as the ocular testimony of Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3), the injured eye-witnesses, is concerned, it is well settled that merely because the said witnesses are related to the deceased, their statement cannot be rejected outrightly and it has to be assessed and scrutinized with great care and caution.

If we take into consideration the statements of Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3), so far as as the conviction of A-3 Umesh Baghel under Section 302 of IPC is concerned, both have clearly stated in their statement that A-3 Umesh Baghel was armed with a dagger (katar) and assaulted their father by the said dagger. A dagger was also seized vide Exhibit P-23, pursuant to the memorandum statement of A-3 Umesh Baghel recorded vide Exhibit P-20. Preetam Singh Sidar (PW-25), one of the memorandum and seizure witnesses, has also partly proved the memorandum and seizure proceeding.

Furthermore, a careful perusal of the statement of Dr. S.R. Sidar (PW-11), who has conducted the post-mortem (Exhibit P-15), would show that the deceased had received injuries on his chin, neck, right hand and left arm, which are:-

(1) Incised wound on chin about 6x3x2cm runs obliquely and bloodstains present.

(2) Incised wound over chin about 5x3x2 cm runs obliquely.

(3) Incised wound over right side of neck about 4x2x1cm runs transversely.

(4) Incised wound over left side of neck above 12x3x3cm runs transversely.

(5) Incised wound over left to front of neck about 8x2x2cm runs transversely.

(6) Incised wound over right forearm mid 3rd post about 6x3x1cm runs transversely.

(7) Incised wound over right wrist post about 3x1cm runs transversely.

(8) Incised wound over right hand palmar aspect about 6x1cm obliquely.

(9) Abrasion over right hand palmar aspect about 3x2cm

(10) Abrasion over right little finger palmar aspect about 4x2cm

(11) Incised wound over left shoulder about 9x4x1cm longitudinal.

(12) Abrasion over left hand 5x2cm palmar aspect.

In the opinion of Dr. Sidar, all the injuries were caused with hard and sharp object within 12 hours prior to death and the neck injuries were sufficient to cause death. The cause of death was due to hemorrhage and shock as a result of neck injuries and the nature of death was homicidal.

Similarly, Dr. S.R. Sidar (PW-11), by his query report (Exhibit P-17) has also opined that the injuries sustained in the neck, chin and arms of deceased Teerathram Baghel may have caused by the seized dagger and he further asserted that death can be caused by the assault of the dagger in the neck.

The statement of the two injured witnesses, Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3), in respect of the overt-act committed by A-3 Umesh Baghel is consistent and Ku. Malti (PW-1) is also the first informant.

Thus, considering the statements of Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3) as well as taking into consideration the statement of Dr. S.R. Sidar (PW-11) and the injuries caused by A-3 Umesh Baghel with the dagger on the person of the deceased, particularly on his neck, the conviction of A-3 Umesh Baghel for the offence punishable under Section 302 of IPC is well merited and need no interference.

So far as the conviction A-2 Heerasingh Baghel and A-1 Bhisham Baghel under Section 302 of IPC is concerned, both have been convicted for the said offence with the aid of Section 34 of IPC.

Now, the question would be, whether A-2 Heerasingh Baghel and A-1 Bhisham Baghel could be convicted with the aid of Section 34 of IPC?

In this regard, it would be appropriate to notice Section 34 of IPC which reads as follows:-

“34. 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.”

A focused glance of the aforesaid provision would show that the essence of Section 34 of IPC is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result and such consensus can be developed at the spot also. Thus, Section 34 of IPC is intended to cover a situation wherein the accused persons have done something with common intention to constitute a criminal act.

In the matter of Barendra Kumar Ghosh v. King Emperor AIR 1925 PC 1, it has been held as follows:-

“...Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it.”

In the matter of Mahbub Shah v. King Emperor AIR 1945 PC 118, it has been held as under:-

“...Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say 'the common intentions of all', nor does it say 'an intention common to all'. Under the section the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.”

Thereafter, the Constitution Bench of the Supreme Court in the matter of Mohan Singh v. State of Punjab AIR 1963 SC 174, while dealing with the scope of Section 34 of IPC, held as under:-

"13. ...Like Section 149, Section 34 also deals with cases of constructive liability. It provides that where 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. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.”

In the matter of Suresh v. State of U.P. (2001) 3 SCC 673, Thomas, J, speaking for the Supreme Court has held two conditions precedent which are imperative for applying Section 34 of IPC, as under:-

“23. Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.”

In the matter of Lallan Rai v. State of Bihar (2003) 1 SCC 268, their Lordships of the Supreme Court while relying upon the dictum laid down in Barendra Kumar Ghosh (supra) and Mohan Singh (supra) have held that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result. It has been stated therein that such consensus can be developed on the spot, but in any case, such a consensus must be present in the commission of the crime itself.

In the matter of Nagaraja v. State of Karnataka (2008) 17 SCC 277, their Lordships of the Supreme Court have held that to impose vicarious liability under Section 34 of IPC:

(1) common intention, and (2) participation of accused in the commission of an offence must be proved, and further held that prosecution is bound to prove the factum of common intention amongst the accused persons.

In the matter of Virendra Singh v. State of Madhya Pradesh (2010) 8 SCC 407, their Lordships of the Supreme Court have held that liability under Section 34 of IPC can arise only when two conditions stand fulfilled i.e. firstly, mental element or intention to commit criminal act conjointly with another or others; and secondly, actual participation in one form or the other in commission of crime. Section 34 is intended to cover a case where a number of persons act together and on facts of case it is not possible for prosecution to prove as to which of the persons who acted together, actually committed the case. Under Section 34, it is the intention to commit the crime and accused can be convicted only if such intention has been shared by all accused.

In the matter of Syed Yousuf Hussain v. State of Andhra Pradesh (2013) 4 SCC 517, the Supreme Court has held that to get Section 34 of IPC attracted, certain conditions precedent are to be satisfied. The act must have been done by more than one person and they must have shared a common intention either by omission or commission in effectuating the crime. It is always not necessary that every accused must do a separate act to be responsible for the ultimate criminal act. What is required is that an accused person must share the common intention to commit the act.

Very recently, in the matter of Vijendra Singh v. State of Uttar Pradesh (2017) 11 SCC 129, their Lordships of the Supreme Court have reiterated the principles of law for applicability and scope of Section 34 of IPC and summarised the principles therein by holding as under:

“28. The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained from the evidence brought on record. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See Kripal v. State of U.P., AIR 1954 SC 706). In Bharwad Mepa Dana v. State of Bombay, AIR 1960 SC 289, it has been held that Section 34 IPC is intended to meet a case in which it may be difficult to distinguish the 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. The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted.”

Following the principles of law laid down by their Lordships of the Supreme Court with regard to applicability and scope of Section 34 of IPC in above-stated judgments and keeping in mind those principles, reverting back to the facts of the present case, as regards A-2 Heerasingh Baghel, he is said to have assaulted the deceased with iron rod and pursuant to his memorandum statement, an iron rod has also been recovered. However, though in the query report (Exhibit P-16), Dr. S.K Sidar (PW-11) has stated that the injuries received by the deceased on his hands could have been caused by iron rod but in the manner the said simple injuries have been suffered on his hands, as per post-mortem report (Exhibit P-15), they could have also been caused due to his falling down from the motorcycle and, therefore, chances of receiving such injuries by the deceased on account of his falling down from the motorcycle cannot be ruled out. Committing of any overt-act by A-2 Heerasingh Baghel towards the deceased, Teerathram Baghel is also not fully established.

Similarly, so far as A-1 Bhisham Baghel is concerned, he has not caused any injury to the deceased as per the statements of Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3), the two injured witnesses itself. Even in her statement, Ku. Malti (PW-1) has clearly stated that A-1 Bhisham Baghel has caused injuries to her sister Ku. Bhuvaneshwari (PW-3). No overt-act on the part of A-1 Bhisham Baghel also is established towards the deceased. There is only the evidence of his causing injuries to Ku. Bhuvaneshwari (PW-3), which, according to Dr. S.R. Sidar (PW-11), who has conducted her MLC vide Exhibit P-14, are all simple in nature. However, though presence of A-2 Heerasingh Baghel and A-3 Umesh Baghel on the place of incident is established but the presence of A-1 Bhisham Baghel is doubtful as Chain Singh Bariha, whose statement has been relied upon as Exhibit D-2 in defence, has clearly stated that only two persons got down from the car and chased the person who had fallen down from the motorcycle. As such, the presence of A-1 Bhisham Baghel on the place of occurrence is also not fully established.

Under the said circumstances, considering the statements of Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3), the two injured witnesses, and also considering the fact that no overt-act found established on the part of A-2 Heerasingh Baghel and A-1 Bhisham Baghel towards the deceased, their conviction for the offence punishable under Section 302 with the aid of Section 34 of IPC is not well established. Accordingly, the conviction of A-2 Heerasingh Baghel and A-1 Bhisham Baghel for the offence punishable under Section 302 read with Section 34 of IPC is set-aside and they are acquitted of the said charge on the basis of benefit of doubt.

Now, so far as the conviction of all the three Appellants for the offence punishable under Section 323 read with Section 34 of IPC is concerned, in view of the aforesaid discussion of evidence and also considering the statements Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3), the two injured witnesses, there is no overt-act on the part of A-2 Heerasingh Baghel and A-3 Umesh Baghel of inflicting injuries to Ku. Malti (PW-1) and Ku. Bhuvaneshwari (PW-3). However, though the said two injured witnesses have named A-1 Bhisham Baghel to have caused simple injuries to Bhuvaneshwari (PW-3), but, as held above, the presence of A-1 Bhisham Baghel on the place of incident is doubtful in view of the statement of Chain Singh Bariha relied upon by the defence itself as Exhibit D-2. In that view of the matter, conviction of the Appellants for the offence punishable under Section 323 read with 34 of IPC deserves to be and is hereby set-aside and they are acquitted of the said charge on the basis of benefit of doubt.

Conclusion:-

In conclusion,

(i) the conviction and sentence of A-1 Bhisham Baghel and A-2 Heerasingh Baghel for the offences punishable under Sections 302/34 and 323/34 of IPC are set-aside and they are acquitted of the said charges on the basis of benefit of doubt. Both A-1 Bhisham Baghel and A-2 Heerasingh Baghel are reported to be in jail since 12.5.2014. We therefore direct that they be released from jail forthwith, if their detention is not required in connection with any other offence.

(ii) the conviction of A-3 Umesh Baghel for the offence punishable under Section 302 of IPC, including the fine part with default stipulation imposed by the Trial Court, is affirmed. However, his conviction for the offence punishable under Section 323/34 of IPC is set-aside and he is acquitted of the said charge.

Resultantly, the appeal of A-1 Bhisham Baghel and A-2 Heerasingh Baghel is allowed and the appeal of A-3 Umesh Baghel is dismissed to the extent indicated herein-above.

Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary action, if any, at the earliest.