Tilak Kurmi vs State of Madhya Pradesh

M.K. Mudgal, J.—Case diary is available. After investigation, charge-sheet has already been filed.

This is first bail application filed by the applicant-accused under Section 439 of the Code of Criminal Procedure for grant of bail in connection with Crime No.411/2014 registered at Police Station Khurai, District Sagar for offence under Section 302 read with 34 of the IPC.

Learned counsel for the applicant submits that the applicant-accused has been falsely implicated in this case. As per prosecution story, when the deceased Hemant Singh was proceeding towards his village at about 11:30 a.m. on 21.10.2014 by a motorcycle, he was stopped by the applicant-accused and other co-accused Ramnath Kurmi, brother of the applicant- accused saying that day before the incident is yesterday why was he abusing them. A hot talk took place between them. At the same moment, the applicant-accused Tilak Kurmi caught hold of the deceased and co-accused Ramnath stabbed the deceased on his chest with a sharp edged weapon kept with him as a result Hemant succumbed to the injury. Learned counsel submits that the applicant-accused was not aware of the fact that the co-accused Ramnath was carrying a knife in his pocket owing to which it cannot be deduced against the applicant-accused that he had common intention to commit murder of the deceased. In the said circumstances, the applicant-accused cannot be held responsible for the act of offence committed by the co-accused Ramnath. Learned counsel placing reliance upon the judgments in the cases of Kashmira Singh Vs. State of Punjab, , Shivcharan vs. State of M.P. , 2008 (2) MPLJ 430 and Vijay Singh and others vs. State of M.P., 2009 (2) MPLJ (Cr.) 539 has submitted that no offence is made out against the applicant- accused under Section 34 of the IPC read with Section 302 of the IPC and in the circumstances of this case he cannot be held liable to be considered guilty of the charge under Section 302 read with Section 34 of the IPC. On the aforesaid grounds, learned counsel has prayed for bail.

Learned Public Prosecutor for the State opposing the submissions made on behalf of the applicant-accused has submitted that the facts of the cited cases are quite distinguishable from this case at this stage because the said judgments are based on the consideration of the merits of the evidence whereas in the instant case the matter is pending before this court for bail. Apart from this, as per statements of the witnesses, it has come on record that the day before the incident, a dispute arose between the applicant-accused and the deceased owing to which the alleged offence was committed by the applicant-accused and his brother with preplanned and premeditated. Hence, in the such circumstances, at this stage, without recording the evidence on merit, the arguments putforth by the applicant-accused cannot be accepted. On the aforesaid grounds, learned Public Prosecutor has prayed for rejection of the bail application.

On perusal of the case diary, it is evident that when the deceased was going on bike, he was stopped by the applicant- accused and his brother Ramnath and he was caught hold of by the applicant-accused. At the same time, the co-accused Ramnath stabbed a knife in the deceased''s chest; resultantly, he died. Considering the said evidence, it is inferred that the applicant-accused catching hold of the deceased disabled him from defending himself. If the deceased had not been caught hold of by the applicant-accused, it would not have been possible for the co-accused Ramnath to stab him with a knife. In the said circumstances, the deceased could not defend himself.

Common intention has been defined under Section 34 of the IPC. Hon''ble Apex Court in the case of Abdul Sayeed Vs. State of Madhya Pradesh, has held in para 49 of the said judgment as under:

"49. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the ''common intention'' to commit the offence. The phrase ''common intention'' implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the ''same intention'' or ''similar intention'' or ''common object''. The persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC."

In the light of the said discussion, if the instant case is considered, prima-facie, it is inferred that the applicant-accused had also common intention to kill the deceased because the co-accused Ramnath was not stranger; he was his brother and both had come on the spot together. Apart from this, for committing the alleged offence, there was a common motive because the day before the incident a dispute arose between the deceased and the applicant-accused. The said circumstances indicate the plan of both the accused to commit the murder of the deceased. So far as the cited judgments are concerned, no benefit can be given to the applicant-accused at this stage because the said judgments are based on the consideration of the merit of the each case and the facts which are quite distinguishable from the facts of this case.

Considering the aforesaid facts and circumstances of the case, the application is hereby dismissed.