Sajan Kumar vs State Of Chhattisgarh

Both theses appeals are arising out of the common judgment of conviction and sentence dated 05-07-2004 passed by First Additional Sessions Judge, Bilaspur, in Sessions Case No. 406/2003, whereby the accused persons have been convicted and sentenced as below :-

CONVICTION

SENTENCE

PUNISHMENT IN DEFAULT OF PAYMENT OF FINE

U/s 304-II read with Section 34 of I.P.C.

R.I for 7 years

-

U/s 323 of I.P.C.

R.I. for 6 years.

-

All the sentences are directed to run concurrently.

In the present case, there were 04 accused persons charge-sheeted for the alleged offence of commission of murder of Om Prakash Vastrakar and for causing simple injuries to Prakash Mahra and annoyed the complainant Tijram by obscene act. After conclusion of Trial, all the accused persons have been convicted for the respective offences as per the allegation of their involvement in the offence.

• The accused Basant Kumar has been convicted for the offence under Section 304 Part II of I.P.C. and sentenced him for R.I. for 10 years. He has filed appeal before this court vide Cr.A. No. 747/2004. During pendency of the appeal, Basant Kumar has died on 16-01-2016 and his appeal has been abated vide order dated 16-10-2023 passed in Cr.A. No. 747/2004.

• The accused Feku @ Banshi Lal has been convicted for the offences under Section 304 Part-II/34 and 323 of I.P.C. and sentenced him for R.I. for 07 years and 06 months respectively. He is the appellant in Cr. A. No. 688/2004.

• The accused Meghai Bai has been convicted for the offence under Section 304 Part II/34 of I.P.C. and has been sentenced for R.I. for 03 years. She has filed appeal before this court vide Cr.A. No. 610/2004. During pendency of the appeal, Meghai bai has died on 14-11-2006 and her appeal has been abated vide order dated 30-06-2008 passed in Cr.A. No. 610/2004.

• The accused Sajan Kumar has been convicted for the offence under Section 304 Part II/34 and 323/34 of I.P.C. and have sentenced for R.I. for 07 years and 06 months respectively. He is the appellant in Cr. A. No. 600/2004.

Brief facts of the case are that on 17-09-2003, the complainant Tijram was being informed by one Jethu Ram, resident of village Deori, that the Panchayat Meeting was called by Sarpanch Sajan Verma, in the house of Meghai Bai with respect to the dispute between Meghai Bai and Malti Bai. The complainant refused to go there in the meeting. After some time, the accused persons came together to the house of the complainant and started abusing Tijram as to why he has not come in the Panchayat Meeting which was being called by them and during this, the accused Feku Ram assaulted Prakash by Lathi by which Prakash received injuries over his back, when the complainant Tijram intervened, the accused Basant Mahra has assaulted Om Prakash by snatching the Lathi of Feku Ram by which Om Prakash received injuries over his head and blood was started coming out from his nose. He immediately taken to Medical College, Bilaspur, but he succumbed to his injuries. The report Ex. P-1 has been lodged by the complainant Tijram at police station Seepat. After preparing Panchnama (Ex. P-3) of dead body of the deceased and Postmortem (Ex.P-5A), various seizures, recording statement under Section 161 of Cr.P.C. of the witnesses and completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Bilaspur. The case was committed to the Sessions Court and from where transferred it to the trial court for its trial.

The charges against accused Basant Mahra has been framed for the offences of Section 302, 323/34 and 294 of I.P.C. whereas the charges against accused Feku Ram @ Banshi Lal was framed under Section 323, 302/34, 294 of I.P.C. and charges against other accused persons Meghai Bai and Sajan Kumar, have been framed under Section 302/34, 323/34 and 294 of I.P.C. The accused persons abjured their guilt and claimed trial.

In order to bring home the charges, the prosecution has examined as many as 17 witnesses. The statement under Section 313 of the Cr.P.C. of the accused persons have also been recorded in which they denied the material appears against them and have pleaded that they are innocent and have falsely been implicated in the offence.

After appreciation of the evidence available on record, the trial court has convicted the accused persons and sentenced them as mentioned in para 01 of this judgement. Hence, this appeal.

Learned counsel for the appellants would submit that the appellants are innocent and have falsely been implicated in the offence. No offences are made out against the appellant as alleged. The prosecution has failed to prove its case beyond reasonable doubt. There is no prior meeting of mind and and no prearranged plan to commit murder/culpable homicide of the deceased Om Prakash and the ingredients of Section 34 of the I.P.C. are missing. The main allegation of assault is upon accused Basant Kumar who caused injuries to the deceased. The allegation against Feku @ Banshi Lal is only that he caused simple injuries to Prakash but neither caused injuries to deceased Om Prakash nor have intended or sharing common intention to cause him injuries alongwith other accused persons. He had gone there only to ask Tijram as to why he has not come in the meeting. The villagers have commonly taken lathi in their hand and by which it does not mean that he has shared any common intention to cause injuries to the deceased Om Prakash. Basant Kumar has snatched lathi from his hand and make assault on the deceased Om Prakash. He would further submit that as per the FIR lodged by the complainant Tijram, the allegation against accused/appellant Sajan Verma is only that he had gone to the house of the complainant and abused him with filthy language and ask him as to why he has not come in the meeting. He would further submit that had they been intended to commit murder of Om Prakash or to cause injuries to him, they would have been armed with deadly weapons and start assaulting immediately after reaching to the house of the complainant Tijram and should have been aimed Tijram. Therefore, the alleged offences are not made out against the appellants, and they are entitled for their acquittal.

Per contra, the learned counsel for the State opposes the arguments advanced by the learned counsel for the appellants and have submitted that the prosecution has proved its case beyond reasonable doubt. There was no reason for the accused persons/appellants to go to the house of the complainant to ask why he has not come in the meeting when they were in knowledge that he is having dispute with Meghai Bai and he refused to go to her house. All the accused persons had gone to the house of the complainant together having lathi and firstly the accused Feku has assaulted the injured Prakash and then the co-accused Basant Verma has assaulted Om Prakash by which he received head injuries. Thus, it is quite vivid that the accused persons had gone there with the intention to raise quarrel and have assaulted the injured Prakash and Om Prakash. Therefore, the learned Trial court has rightly convicted the appellants and sentenced them which needs no interference. The learned Trial Court has already taken a lenient view while sentencing the accused persons/appellants and therefore, the appeals of the appellants are liable to be dismissed.

I have heard the learned counsel for the parties and perused the record.

P.W. 1, Tijram, the complainant has stated in his deposition that since 4 months back, when he was in his house at about 7-8 in the evening, his son-in-law Paras Ram, daughter Malti and both the grandson Om Prakash and Prakash were also in his house, Jethu came to his house and called him to the house of Meghai Bai in whose house the panchayat meeting was convened. When he refused to go to the house of Meghai Bai and said that he would come if the meeting would have been called at another place except the house of Meghai Bai because they have the dispute with her. Then Jethu returned back. After some time, the accused persons Sajan Kumar, Meghai Bai, Basant and Feku were came and thereafter Jethu and Bhulau also came there. As sooner they reached to his door, they started abusing the complainant Tijram and Sarpanch said that he is the Sarpanch and he (Tijram) should have to come when and where he asks to come. At that time, Meghai bai exhorting the other accused persons Maro-Maro and saying that she wants blood. At that moment, Feku has given a lathi blow to Prakash which inflicted on his back and Basant has snatched the lathi from Feku and given a blow upon the Om Prakash by which he received injuries over his head, and he fell on the ground. When Om Prakash fell on the ground, the accused persons fled away from there. They have taken Om Prakash to the Bilaspur hospital where he died during treatment. In the next morning the report has been lodged. In his cross examination, this witness has stated that on the date of incident, in the morning the quarrel took place in the field in between Meghai Bai and Malti Bai. His daughter Malti Bai has requested the Sarpanch Sajan to convene the meeting to sort out the dispute with Meghai Bai. He admitted that it is the same dispute for which he was being called by Sarpanch for the Panchayat meeting. Since he does not want to convene Panchayat meeting in the house of Meghai Bai, he refused to go there for the meeting. In the evening, Sarpanch alongwith 6-7 other persons including the accused persons have come to his house. He further admitted that Jethu informed him that the Sarpanch and others have come and calling him for the Panchayat meeting. On being called by Jethu, he, his daughter Malti Bai and his son-in-law Paras Ram came out from his house. When they came out from their house, the accused persons were started abusing them and Meghai Bai exhorting them.

He has further stated that they were requested to Sarpanch to get the dispute of paddy between them be decided. In para 7 of his cross examination, he stated that at the time when Meghai Bai was exhorting the other accused persons, all the 6 accused persons who came together, were started assaulting Prakash. He further stated that on the date of incident, 6 persons have come to his house not 4 persons and he disclosed the names of all the 6 persons who came there in his house. He has further stated that the exhortation of Meghai Bai has been disclosed to the police in the FIR and his police statement and if it is not there then he could not tell the reason. He admitted that the persons who came to his house, wanted to convene the Panchayat meeting. He further admitted that Meghai Bai came to his house for Panchayat meeting. He further admitted that he requested Sarpanch Sajan Kumar to arrange the Jeep and he has given assurance for arrangement of the jeep to take the injured to hospital. In between that, they themselves have manage the jeep and taken Om Prakash to the hospital. Sarpanch Sajan himself has gone to police station for lodging of the report. He admitted that on the instance of police persons, he named Sajan as accused because he was capable to give money to the police persons.

The P.W. 2, Paras Ram Vastrakar, who is the father of the deceased, has stated that on the date of incident, there was dispute arose between his wife and Meghai Bai on the issue of paddy crop. He was being informed by her about the quarrel with Meghai Bai. In the evening at about 7-00 o’clock, Jethu has come to his house and said that Sarpanch has called them in the house of Meghai Bai. They refused to go there because of the recent dispute with her and have said that except in the house of Meghai Bai, they will go to any other place. After some time, 5-6 persons including the accused persons have come to his house and started hurling abuse. All the persons were abusing them, and they were requested to get the matter compromised. At that time his both the sons were came out from inside of his house and tried to take them inside and then the Sarpanch Sajan had pushed Prakash and Feku has given a lathi blow on Prakash which inflicted on his back and immediately thereafter, Basant has snatched the lathi from Feku and given a blow on Om Prakash which inflicted on his head. Om Prakash has got unconscious, and blood was coming out from his nose and the accused persons have fled away. They have taken him to hospital where he was declared dead. In cross examination, he has stated that the dispute arose between his wife and Meghai Bai is with respect to paddy crop.

He has further stated that at the time of incident, 7 persons have come to his house and if it is not in his police statement, he could not tell the reason. At the time when they came out from their house, they had a talk to Sarpanch. When Sajan has questioning him as to why they are not coming on call when he has called them, then they requested him to get the matter compromised and said that except the house of Meghai Bai, they will come to any other place. The accused persons had abused them for about half an hour and the persons of the vicinity were also gathered but none of them have pacify them. After hearing the abuse, his both sons came out from inside and tried to take them inside so that the dispute may come to an end. Meghai Bai too was exhorting there maro-maro. His son has received injuries over his head. He admitted that his son Om Prakash has said that he will take revenge from Basant. He further admitted that his father-in-law has requested the Sarpanch to make arrangement for taking his son to hospital as he has received head injuries and then Sarpanch assured him for arrangement of vehicle to take his son to the hospital. They have arranged another vehicle and take his son to the hospital. Out of 7 persons, only one was having a lathi in his hand. He further admitted that except Meghai Bai, he was having no dispute with other persons.

P.W. 3, Prakash, is the injured witness who has stated in his deposition that on the date of incident at about 7-8 o’clock in the evening, Jethu came to his house and said that Sarpanch has called them in the house of Meghai Bai for meeting. They refused to go there because of the recent dispute. After some time, all the accused persons alongwith Melaram, Jethu and Bhulau came to his house and started hurling abuse by all of them. After hearing the abuse, when they came out from their house and tried to stop them from hurling abuse, the accused Feku has assaulted him by lathi on his back and Basant after snatching lathi from Feku, assaulted his brother Om Prakash on his head. He received injuries and fell and blood was coming out from his nose. At the time of incident, 30-40 persons were gathered, and he does not identified them except 2-4 persons. He has further said that the persons who had come to his house, were abusing for half an hour. He further stated that the quarrel stands upto about 10-15 minutes. During the quarrel, 30-40 persons were gathered but none of them have intervened. He further admitted that they are not having any enmity with Feku and Basant.

P.W. 4, Malti Bai, have also stated in her deposition that on the date of incident, Jethu has come to her house at about 7-8 o’clock in the evening and ask to come to the house of Meghai Bai. When they refused to go there, he returned back. After some time, the accused persons have come to her house and started abusing them and when they came out from her house, accused Sajan Verma started abusing them. Meghai Bai was exhorting there that she will take a bath from the blood of her son. They requested Sarpanch to get the matter compromised but they had not stopped from abusing them. After hearing the abuse, her both the sons were came out from inside and they also requested to Sarpanch to get the matter compromised but the Sarpanch pushed her son Prakash and Feku has given a lathi blow on the back of her son Prakash. At that moment, Basant has snatched lathi from Feku and has assaulted Om Prakash by the said lathi by which he received injuries over his head and getting unconscious. Then the accused persons have fled away from the spot. In cross examination, this witness has also remain firm that on the date of incident at about 7-8 o’clock in the evening, the accused persons have come to her house, started hurling abuse and made assault to her son Prakash and Om Prakash by lathi. But for minor omission and contradiction, no material brought by the defense in her evidence so that this witness can be disbelieved. When her son Om Prakash received injuries, she requested Sarpanch for arrangement of any vehicle to take her son to the hospital.

The P.W. 5, Bindu Yadav, who is the resident of the same vicinity where the complainant was residing, have stated in his deposition that he heard the noise of quarrel coming from the nearby place of the house of Paras Ram and after some time he heard the noise of Malti Bai that his son is being assaulted and Om Prakash was alleging Basant that he has assaulted him and he will see him. He has turned hostile and has not supported the prosecution’s case. P.W.7 has also turned hostile and has not supported the prosecution’s case.

P.W. 10, Jagat Narayan, has stated in his deposition that he witnessed the incident and witnessed the assault made by Feku to Prem Prakash and thereafter assault made by Basant to Om Prakash after snatching the lathi from Feku by which Om Prakash fell and became unconscious. Although, he denied from giving some part of his police statement but has supported the incident that Feku assaulted the Prakash and Basant assaulted Om Prakash after snatching the lathi from Feku. He further admitted that Tijram and Parasram has asks the Sarpanch Sajan Verma to arrange any vehicle for taking the injured Om Prakash to the hospital and Sajan Verma has assured them for arrangement of the vehicle. This witness has denied the previous dispute with Sajan Verma with him.

P.W. 13, Dr. Rajesh Kumar, has medically examined the injured Prakash Singh and have stated that he examined the injured on 25-09-2003 and given his MLC report Ex. P-14 (A), and found following injuries over the body of the injured Prakash :-

◦ Mild Tenderness, 3 cm x 4 cm present over left scapular region (medially) caused by hard and blunt object and injuries are simple in nature.

P.W. 16, Dr. A. K. Shukla, who conducted the postmortem of the dead body of the deceased have stated in his deposition that while conducting the postmortem of the dead body of deceased Om Prakash, he found that the occipital bone of his head was fractured lateral to mid-line on left side, extensive subdural hematoma in the occipital region extending to base, brain compressed and congested. He opined that the cause of death is coma due to head injury. In cross examination, he has stated that there is no other external injuries were found on the body of the deceased. The injuries found on the head of the deceased could have been caused due to dashed with a wall or any hard surface. There was only one injury over his head.

The Hon’ble Supreme Court, in the matter of Kirpal and Bhopal Vs. State of Uttar Pradesh, AIR 1954 SC 706, has held in para 7 of its judgment that :-

On this evidence there can be no doubt that all the three appellants had the common intention of beating Man Singh and Sher Singh and that they did beat them with the several weapons in their hands. But it is specifically in evidence that though two out of them, viz. Bhopal and Kripal had spears in their hands, they beat them with the handles thereof and that Sheoraj beat with the lathi in his hand. It is clear, therefore, that the common intention that can be ascribed to the three appellants so far as these two persons, viz. Man Singh and Sher Singh are concerned is a common intention to beat them. The injuries actually received by both of them are, as found from the Medical certificates, only simple.

In the matter of Vijendra Singh Vs. State of Uttar Pradesh, 2017 (11) SCC 129, the Hon’ble Supreme Court has held in para 19 to 28 that :-

Mr. Giri has drawn our attention to paragraph 10 of the authority in Jai Bhagwan (supra). It reads as follows:-

“10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.”

He has also relied on the decision in Suresh Sakharam Nangare (supra). In the said case, the Court after referring to Section 34 IPC opined that a reading of the above provision makes it clear that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked.

In the said case, the Court after analyzing the evidence opined that there is no material from the side of the prosecution to show that the appellant therein had any common intention to eliminate the deceased because the only thing against the appellant therein was that he used to associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the appellant could not be convicted in aid of Section 34 IPC.

In this regard, we may usefully refer to a passage from the authority in Pandurang and Ors. v. State of Hyderabad[9]. The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that:-

“32. … It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor[10]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor[11] and Mahbub Shah v. King Emperor (supra). As Their Lordships say in the latter case, “the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice”.

The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a per-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.”

And, again:-

“34. … But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, “the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”. (Sarkar’s Evidence, 8th Edn., p. 30).”

In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh (supra). In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that 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 some ways the two sections are similar and in some cases they may overlap. The common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. Thereafter, the Court held:-

“It is now well- settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King-Emperor (supra) common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.”

In Harshadsingh Pahelvansingh Thakore (supra), a three-Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled thus:-

“7.  Section  34  IPC  fixing  constructive  liability  conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P.[12]; Maina Singh v. State of Rajasthan.[13]) Lord Sumner’s classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse “They also serve who only stand and wait” a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code.”

In Lallan Rai and Ors. v. State of Bihar[14] the Court relying upon the principle laid down in Barendra Kumar Ghosh (supra) has ruled 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.

27.In Goudappa and Ors. v. State of Karnataka[15] the Court has reiterated the principle by opining that Section 34 IPC lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.

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 : Kirpal and Bhopal v. State of U.P.[16]). In Bharwad Mepa Dana and Anr. v. The State of Bombay[17], 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.

From the overall scrutiny of the evidence available on record, it appears that on the date of incident, the accused Sajan Kumar, Sarpanch, has called a meeting in the house of Meghai Bai to resolve the dispute between Meghai Bai and Malti Bai. When the complainant party refused to go to the house of Meghai Bai for meeting as they have dispute with her, the accused persons were came to the house of Tijram and ask why they have not come there for meeting on being called by Sarpanch. Then quarrel started and accused Feku made lathi blow on Prakash on his back. At that moment, the accused Basant has snatched lathi from Feku and made blow on Om Prakash which inflicted on his head. There is no previous meeting of mind or intention of all the accused persons to commit assault the complainant party. Only the accused Feku was having lathi in his hand which the village commonly having in their hand. Feku has not assaulted any other complainant and he made blow on back of Prakash. Had he been intended to commit murder or cause grievous hurt to complainant party, he would have hurling lathi or aimed any particular person and would have cause injury to his vital part of body. It is only that during the quarrel, he has inflicted injury on the back of Prakash. No one would under the expectation there that the accused Basant would have snatched lathi from Feku and assaulted any of the complainant party. The injured Prakash and deceased Om Prakash have came out from inside in the mids of altercation to take their parents inside the house and when they taking their parents inside the house, the accused Feku gave a lathi blow on the back of the injured Prakash. Had the accused persons were intended commonly, all of them would have attacked on Prakash. But, at that time, Basant snatched lathi from Feku and gave a blow on Om Prakash. The accused persons have not targeted any particular person to make assault on him. All the incident is happened all of sudden. Feku has not given the lathi to accused Basant but the Basant has snatched lathi from Feku and given a blow to Om Prakash. Basant has not made any repeated blow on the injured. Section 34 implies the criminal act was done in concert of pursuant to prearranged plan or prior meeting of mind and it is not enough to have the same intention independently of each other. If there is no prior meeting of mind to form a prearranged plan, each would be individually liable for the injuries caused by them but not for vicariously liable for the act of the others.

It also come in evidence that after assault was being made by Basant to the Om Prakash, the complainant Tijram has asked the Sarpanch Sajan Kumar to arrange the vehicle to get the injured to hospital for treatment. Meaning thereby, the quarrel between them at that time were not of such gravity that they intentionally caused the injuries to the deceased and left him in such a condition. Sarpanch Sajan Verma is not having any dispute with the complainant party. They have faith upon the Sarpanch and that is why they ask Sarpanch to arrange the vehicle or else they may also start assaulting the accused persons. The evidence also come on record that the quarrel and hurling abuse was continued for about half an hour, which shows that the accused persons have not gone there with intention to cause injuries to the complainant party but they had gone there only to resolve dispute between Meghai Bai and Malti Bai. Had they been intended or shared common intention to cause injury to complainant party, all of the accused persons would have been armed with deadly weapon and as soon as they reached to the house of complainant party, they would have started assaulting them without any conversation. Although, the accused persons were hurling abuse but the same does not mean that they have intended to commit murder of the deceased or to commit culpable homicide not amounting to murder. The incident of assault happened in a spur of moment and all of sudden which no one can expect on the situation. Therefore, there is no sufficient evidence on record to hold that the accused persons have shared common intention to commit culpable homicide not amounting to murder.

From the above discussion, it is quite vivid that the accused Basant has caused injuries to the deceased Om Prakash by lathi blow and therefore, he alone is liable to be convicted for the offence of 304 part II of I.P.C. for committing culpable homicide not amounting to murder of Om Prakash. The accused Feku @ Banshi is liable to be convicted for the offence of Section 323 of I.P.C. for causing simple injuries to the injured Prakash. The other accused persons Meghai Bai and Sajan Kumar are liable to be acquitted from the charge of Section 304 Part-II/34 and 323/34 of I.P.C

The accused Basant Kumar (Cr. A. No. 747/2004) has already died and his appeal has already been abated. Therefore, there is no need to pass any order about his sentence. Meghai Bai (Cr.A. No. 610/2004) has also died and her appeal has also been abated.

The appellant Feku @ Banshi is acquitted from the charge of Section 304 Part-II /34 of I.P.C. and his conviction and sentence under Section 323 of I.P.C. for causing simple injuries to Prakash is maintained. He has been remained in jail from 18-09-2003 upto 21-09-2004 and thereby he has already undergone the entire sentence awarded for the offence of Section 323 of I.P.C.

The appeal of Sajan Kumar (Cr.A. No. 600/2004) is allowed. appellant Sajan Kumar is acquitted from the charge of Section 304 Part-II/34 and 323/34 of I.P.C.

In the result, the Cr.A. No. 600/2004 (Sajan Kumar Vs. State of Chhattisgarh) is allowed and Cr.A. No. 688/2004 Feku @ Banshi Vs. State of Chhattisgarh) is partly allowed.

The appellants Feku @ Banshi (Cr.A. No. 688/2004) and Sajan Kumar (Cr.A. No. 600/2004) are on bail. Their bail bonds are continued for the further period of 6 months as provided under Section 437-A of Cr.P.C.

The lower court record alongwith a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.