1 2025:CGHC:39040 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 827 of 2005 1 - Santosh Kumar @ Motu, S/o M.R. Murti, aged about 25 years, Occupation Driver, R/o B.B.C. Colony, In the Gali of Near Amit Tailor, Khursipar, P.S. Chawni, District Durg (CG) ... Appellant versus 1 - State Of Chhattisgarh, Through District Magistrate, Durg, District Durg (CG) ... Respondent(s) For Appellant : Shri Suraj Jaiswal appears on behalf of Shri Shamsuddin Mirza, Advocate. For Respondent(s) : Miss Nupur Sonkar, Panel Lawyer. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 06/08/2025 : 1. Invoking Criminal Appellate Jurisdiction of this Court, the present Appeal has been filed under Section 374 of the CrPC against the judgment dated 20.10.2005 passed by the Additional Sessions Judge, Durg, in ST No.4/2005 whereby the appellant has been convicted for commission of offence under Sections 452 & 307/34 of the IPC and sentenced to undergo RI for 3 years with a fine of KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.08.06 17:54:52 +0530 2 Rs.1,000/- and to undergo RI for 4 years with a fine of Rs.4,000/- respectively, with usual default stipulations. 2. The prosecution case, in brief, is that complainant Dilip (PW-6) has lodged an FIR (Ex.-P/7), which was registered at ‘0’, on 5.11.2004 at about 8.30 pm stating that one of the co-accused namely, Suraj (acquitted by the trial Court vide impugned judgment) has spread rumour that he had illicit relations with his sister ‘L’ and, therefore, mother Rukmani (PW-9) and father Manaram Dewangan (PW-5) had shifted ‘L’ to Kohka. On the date of the incident at about 6.30 am, co-accused Suraj came in front of the house of the complainant and started using filthy language and also threatened the family members of the complainant to bring ‘L’ back by Sunday, otherwise he would assault them with knife. (PW-10) Madan Lal tried to convince co-accused Suraj and at about 8.30 pm, mother of co-accused Suraj called a meeting where the present appellant and one juvenile were also present. As co-accused Suraj was called to attend the meeting, the appellant and the juvenile became annoyed and they forcefully brought the injured namely, Rajendra (PW-4), brother of ‘L’, from his house and the said juvenile assaulted the injured Rajendra (PW-4) by using Gupti on his back. The incident was witnessed by Rukmani (PW-9), Manaram (PW-5), Sita (PW-8), sister of the injured (PW-4); Ishwar and others. Based on the aforesaid information, numbered FIR was registered. 3 3. On the memorandum of juvenile (Ex.-P/9), Gupti was recovered vide Ex.-P/10. Injured Rajendra (PW-4) was medically examined by Dr. Suvimal Dutta (PW-2) and he has proved his report (Ex.- P/2). The weapon, which was used for commission of offence was also examined and the Doctor has opined that the injuries could be caused to the injured by the said weapon and the Doctor gave his report vide Ex.-P/3. 4. Statements of the witnesses were recorded. After completion of the investigation, charge sheet was filed before the jurisdictional criminal Court, which in turn committed the case to the Court of Sessions for trial. The appellant and co-accused Suraj have abjured their guilt and claimed to be tried. 5. In order to bring home the charges, the prosecution examined as many as 11 witnesses and exhibited 18 documents (Ex.-P/1 to Ex.-P/18). The trial Court after appreciating the oral and documentary evidence available on record acquitted the co- accused Suraj by extending benefit of doubt, however, convicted the appellant as mentioned in para-1 of this judgment. 6. Learned counsel for the appellant would submit that during the meeting, suddenly a quarrel took place and the present appellant was not having any weapon. There is no allegation against the appellant for causing hurt to the injured (PW-4) and the assault was made by the juvenile ‘R’, and, therefore, the trial Court has wrongly applied the provisions of Section 34 of the IPC that the appellant was also having common intention for the act committed 4 by the juvenile. He would further submit that brother of the appellant i.e. co-accused Suraj was in love with the sister of injured (PW-4) Rajendra and the parents forcefully had taken back ‘L’ to their house and a meeting was called by the mother of the appellant and the appellant was also present in the said meeting. When the juvenile entered the house of the injured, the appellant also entered and he had no intention to cause any injury or to attempt on the life of injured whereas the injured was caused by the juvenile. The only allegation against the appellant is that he alone with juvenile has forcefully brought the injured from his house and as such, at the most, offence under Sections 451 and 352 of the IPC is made out. Alternatively, he would submit that the appellant has no criminal past and he remained in jail from 6.11.2004 to 7.12.2004 i.e. for 32 days and thereafter from the date of impugned judgment i.e. 20.10.2005 till 11.11.2005 when the bail was granted to the appellant by this Court and thus the appellant has served the jail sentence for about 2 months. Therefore, in the interest of justice, the sentence imposed upon the appellant may be reduced to the period already undergone by him. Reliance is placed in the matter of Sripathi and Others Vs. State of Karnataka1. 7. Per contra, learned State Counsel would support the impugned judgment. 1 (2009) 11 SCC 660 5 8. I have heard learned counsel for the parties, considered their submissions made hereinabove and also went through the records with utmost circumspection. 9. From the evidence of injured (PW-4) Rajendra, it appears that during the meeting, the appellant and the juvenile have entered his house and forcefully dragged him at the place of meeting. At that point of time, suddenly the juvenile ‘R’ had assaulted the injured by Gupti. From the evidence available on record, it is explicit that when the persons who were assembled in the meeting asked to call co-accused Suraj (acquitted by the trial Court), the appellant and the said juvenile became annoyed and they entered the house of injured (PW-4). The present appellant was not armed with any weapon and the only allegation against him is that he and the juvenile have forcefully dragged the injured from his house to the place of meeting and the assault was made by the juvenile ‘R’. 10. In the matter of Sripathi and Others (Supra), it was observed that when one of the co-accused suddenly takes out knife from his pocket and stabs the deceased, the application of the provisions of Section 34 of the IPC was not found justifiable. Relevant para-9 reads thus:- “9. “5. Section 34 has been enacted on the principle of joint liability in the [commission] of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person 6 for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab [(1977) 1 SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109] the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 6. The section does not say ‘the common intentions of all’ nor does it say ‘an intention common to all’. [Ed. : See Mahbub Shah v. Emperor, AIR 1945 PC 118 : 46 Cri LJ 689] Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the [commission] of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to 7 distinguish between 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. As was observed in Chinta Pulla Reddy v. State of A.P. [1993 Supp (3) SCC 134 : 1993 SCC (Cri) 875 : AIR 1993 SC 1899] Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.” [Ed. : As observed in State of M.P. v. Deshraj, (2004) 13 SCC 199 : 2005 SCC (Cri) 123, at SCC pp. 201-02, paras 5-6.]” 11. In the light of aforesaid principle concerning the applicability of Section 34 of the IPC for establishment of common intention, if the facts of the present case are examined, it appears that during the meeting, a sudden quarrel took place for calling the co-accused Suraj against whom there was allegation that he had illicit relations with the sister of the injured, and because of which the appellant and the juvenile ‘R’ became annoyed and they entered the house of the injured and forcefully dragged him to the place of meeting. The present appellant was not armed with any weapon, neither he was sharing common intention nor he has acted in furtherance of said common intention to attempt on the life of injured. Therefore, this Court is of the opinion that at the most offence would fall under Sections 451 and 352 of the IPC instead of Sections 452 and 307/34 of the IPC. 12. As regards the question of sentence, it is noted that the appellant is facing criminal trial since 2005 and thereafter about 20 years have elapsed and as per the records, the appellant has already served the jail sentence for about two months. Therefore, this 8 Court is of the opinion that ends of justice would be served if the appellant is sentenced to the period already undergone by him. 13. For the foregoing, conviction and sentence imposed on the appellant under Sections 452 and 307/34 of the IPC are set aside and instead thereof, the appellant is convicted under Sections 451 and 352 of the IPC and sentenced to the period already undergone by him. 14. The Criminal Appeal is partly allowed to the extent indicated herein-above. 15. Let a copy of this judgment with original records be sent to the trial court concerned forthwith for necessary information and compliance. Sd/- (Deepak Kumar Tiwari) Judge Barve