1 2025:CGHC:9730 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 516 of 2004 1 - Munna @ Dronacharya (Abated) As Per Hon’ble Court Order Dated 22-12- 2016 And 24-02-2025. 2 - Dashrath S/o Arjitam Satnami Aged About 30 Years R/o.- Dongaghat Vijay Bhatpara, P.S- Jagdalpur, Dist- Mid Baster (C.G.) 3 - Ramdhar (Died And Deleted) As Per Honble Court Order Dated 24-02-2025 ... Appellants (s) versus 1 - State Of Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Vaishali Jeswani, Advocate on behalf of Shri Manish Nigam, Advocate For Respondent / State : Shri Ankur Kashyap, Dy.G.A. ({Hon’ble Shri Justice Sachin Singh Rajput}) Judgment on Board 25/02/2025 This appeal under Section 374 (2) is directed against impugned judgment of conviction and order of sentence dated 19/05/2004 passed by the Special Judge 2 (SC & ST Act), Bastar, Place-Jagdalpur in Sessions Case No.214/2003 whereby and whereunder, the appellants have been held guilty of commission of offence and sentenced as described below - Conviction Sentence 1. U/s 326/34 of IPC R.I. for 3 years with fine of Rs.2,000/- to each. In default of payment of fine, R.I. of 9 months separately. 3. Three accused persons namely Munna @ Dronacharya, present appellant and Ramdhar faced trial before the learned trial Court for an offence punishable under Section 307/34 of IPC and Section 3 (1) (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’) All the accused persons including the present appellant were convicted as stated above and the present appeal was preferred. During the pendency of this appeal, appellant No.1 Munna @ Dronacharya and appellant No.3 Ramdhar passed away. Their appeals were abated. 4. The case of the prosecution in nutshell is that the complainant-Deenbandhu (PW7) belongs to scheduled caste. On the date of incident i.e. on 15/06/1997, in the night at about 1 AM, all the accused persons came near the house of the complainant-Deenbandhu and the present appellant (Dashrath) called the complainant. Thereafter, the appellant and deceased Ramdhar held his hand and appellant Munna stabbed him with sword resulting in injuries on his wrist due to which he fell down and fainted. After gaining consciousness, he shouted, then the villagers came and informed the Kotwar. He was admitted in Maharani Hospital, Jagdalpur. Thereafter, report was lodged, upon which dehati nalishi (Ex.P/9) was recorded. He was medically examined. His caste certificate was seized and FIR 3 under Crime No.248/97 was lodged. Memorandum of accused Munna @ Dronacharya was recorded and a sword was seized from him vide Ex.P/3. Other articles were seized, statement of the witnesses were recorded. After due investigation, charge sheet was filed. The appellant was charged for an offence as stated above. He denied the charges and claimed to be tried. 5. In order to prove its case, the prosecution examined as many as 7 witnesses. The appellant was examined under Section 313 CrPC in respect of the incriminating evidence and circumstances appearing against him in which he took a defence that he was not present at the scene of occurrence. 6. Learned trial Court after assessment of evidence acquitted the appellant and other accused vide impugned judgment under the provisions of the Act of 1989, however, convicted the appellant and other co-accused as stated above which led to filing of this appeal. 7. Learned counsel for the appellant submits that the learned trial Court committed an error of law in convicting the appellant. She submits that the learned trial Court has not appreciated the evidence to its proper perspective and came to a conclusion that the appellant was involved in the offence. She submits that there is no allegation of assault against the appellant. Merely he was present at the scene of occurrence would not ipso facto constitute any offence and the appellant cannot be convicted with the aid of Section 34 of IPC. She submits that the appellant was convicted with the aid of Section 34 of IPC and in the absence of any mens rea, intention and prior meeting of mind with the other appellants, the appellants cannot be convicted. She further submits that the only allegation which appears from the statement of the complainant (PW7) is that the appellant held his hand. 4 She submits that this is an exaggerated statement by the complainant as the rest of the witnesses have not stated the above fact. She places reliance on the judgment of Hon’ble Supreme Court in the case of Krishnamurthy @ Gunodu and ors. v. State of Karnataka, 2022 LiveLaw (SC) 220. 8. Per contra, learned State counsel submits that the appellant was present at the spot. He held the hand of the complainant (PW7), therefore, it goes to show the intention on the part of the appellant to commit the crime. Therefore, the learned trial Court has rightly convicted him with the aid of Section 34 of IPC. 9. Heard learned counsel for the parties and perused the record. 10. Since the appeal of appellant No.1 and 3 are abated, the only question which remains to be determined by this Court is whether the appellant has rightly been convicted with the aid of Section 34 of IPC. The prosecution tried to establish the presence of the appellant at the scene of occurrence through the statement of complainant / victim (PW7). In the examination-in-chief, he stated that he resides in Dongaghat and he is Dhurva aboriginal tribe. He knows the present appellant and the deceased accused person. He states that 4-5 years back, he was assaulted by Munna with the help of sword resulting into injuries on both his wrists. He stated that Dashrath held him and Munna assaulted him. Thereafter, he states that Ramdhar and Dashrath held him and gagged him with clothes. He shouted. Thereafter, he was plunged on the floor. He was assaulted by Munna (deceased appellant) with the help of sword. He got fainted and thereafter, he does not remember who had taken him to the hospital. He gained his consciousness in the Maharani Hospital and remained admitted there for 7-8 days. In the examination-in-chief, this witness suggests presence of the appellant with the 5 statement that he was held by the appellant. 11. Lakheswar (PW1) and Daitari (PW2) who rushed to the spot after hearing the cries of the victim (PW7) and saw him lying in pool of blood totally discarded the case of the prosecution. They were cited as witnesses who have been informed by the victim (PW7) with regard to assault made by Munna @ Dronacharya. Their statements do not throw any light as how the incident had occurred and role attributed by the appellant and other accused persons. 12. The incident is said to have occurred in the night. It is the case of the prosecution that all the appellants came and called the victim (PW7) thereby one of the deceased/appellant Munna assaulted with a sword. In the cross- examination, the complainant (PW7) admitted to omit the fact that he was gagged by a cloth in his statement before the Court (Ex.D/1) and statement before the police (Ex.P/2). Later on, he says that as soon as the appellant came, they tied him. He further stated that he shouted for help but nobody came. He also stated that there was no quarrel with the appellants. He also stated that Ramdhar is the resident of the same place and he already knows him. He, however, denied the suggestion that the appellant-Dashrath was not in the village and had gone to fetch murum soil. This witness only in examination-in-chief states about the fact that the appellant held his hand and later on, he states that he was tied up by the appellant. The prosecution case is also not supported by the independent eye witness. The fact that the appellant was gagged by putting clothes in his mouth is also missing in his statement under Section 164 CrPc (Ex.D/1) and 161 CrPC statement before the police. It appears from the statement that the deceased appellant -Munna assaulted with sword and barring one line oral statement that the appellant held the hand, there is nothing on record to suggest that there was 6 meeting of mind with common intention. Ofcourse, in order to attract Section 34 of IPC, specific overt act is not required to be established but at the same time, the prosecution is required to state by positive evidence that the accused shared common intention and acted in furtherance of common intention. In the considered opinion of this Court, the victim (PW7) appears to have exaggerated the statement before this Court though he remained firm with the statement in respect of assault made by accused Munna. However his statement regarding holding of his hand by the appellants does not inspire confidence as specific defence was taken by the appellant that he was not in his house/village and had gone for fetching murum soil. As the independent witnesses have not supported the case of the prosecution, this Court is inclined to extend benefit of doubt to the appellant. In view of above, the appeal deserves to be allowed and is hereby allowed. The impugned judgment of conviction and order of sentence is set aside. The appellant is acquitted of all the charges. The appellant is reported to be on bail, therefore, his bail bonds shall remain in operation for a period of six months from today in view of provisions of Section 481 of BNSS, 2023. Records of the trial Court with copy of judgment be sent back. Sd/- ({Sachin Singh Rajput}) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.03.05 17:08:55 +0530