1 2025:CGHC:16411-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2063 of 2023 1 - Laxmi Prasad Rajak S/o Shri Ramdular Rajak Aged About 37 Years R/o Block-2, House No. 03, B.S.U.P. Colony Mathpuraina, Police Station Tikrapara, Raipur, District Raipur (C.G.) 2 - Deepak Rajak S/o Shri Ramdular Rajak Aged About 37 Years R/o Block-2, House No. 03, B.S.U.P. Colony Mathpuraina, Police Station Tikrapara, Raipur, District Raipur (C.G.) ... Appellants versus State Of Chhattisgarh Through Station House Officer, Police Station Purani Basti, District Raipur (C.G.) ... Respondent For Appellants : Mr.Vikas Shrivastava, Advocate For Respondent : Mr.S.S.Baghel, Deputy Government Advocate Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Arvind Kumar Verma, Judge Per Ramesh Sinha, CJ 08/04/2025 1. Proceedings of this matter have been taken through video conferencing. BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.04.12 13:42:33 +0530 2 2. The appellants herein question the legality, validity and correctness of the impugned judgment dated 26.10.2023 passed by the Seventh Additional Sessions Judge, Raipur in Sessions Case No.89/2021, by which they have been convicted for offence under Section 302/34 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine to further undergo RI for one month. 3. Case of the prosecution, in brief, is that on 12.11.2020 at about 22.05 P.M. complainant Hemant Kumar Sahu reached Police Station Purani Basti, Raipur and lodged the report to the effect that his brother Chandrahas Sahu was working with contractor accused Laxmi Rajak who was constructing a road in Dhebar City, Bhatgaon, where the complainant had also gone to help. The work of the first shift was over at 6 P.M., the second shift was to start but due to delay of non-availability of sand, there was abuse and argument between Chandrahas Sahu and Laxmi Prasad Rajak in which Laxmi Prasad Rajak’s son Sandeep Rajak came to mediate and before the argument escalated, he called his uncle Deepak Rajak. Thereafter, accused Laxmi Prasad Rajak, Sandeep Rajak and Deepak Rajak in collusion, were assaulting deceased Chandrahas Sahu with their hands and fists with an intention of killing him, then juvenile accused Sandeep took out a sharp knife from him and stabbed Chandrahas Sahu in chest, due to which Chandrahas Sahu fell down on the spot, he was taken to 3 Government Hospital, Mathpuraina for treatment from where he was told to have died when taken to Mekahara Hospital. 4. On the basis of aforesaid information of the complainant, merg intimation (Ex.P-9) and FIR (Ex.P-10) were registered. Inquest over the body of the deceased was prepared vide Ex.P-3. Section 164 CrPC statement of Gopal Kumar Rajaj was recorded vide Ex.P-4. Postmortem of dead body of the deceased was conducted by Dr.M.Nirala (PW-3) vide Ex.P-5 and found following injuries:- “1. Stab injury that on left side chest at 3rd intercastal space level, size 2.5x1xlung deep (cm.), in right side lower part chest, 1x0.5x1cm, in right side chest, laterally 11 cm below from axill, size 2x0.5xlung deep (cm). 2. Incised wound that on right forearm, antero-lateral part 1.5x0.5x0.5 cm. 3. Abrasion that on left side upper part neck situated 4 cm below from left mastoid 0.5x0.5 cm, in right side 2 cm below from right eyelid 1x0.5 cm, in right forehead 3x1cm and 2.5x0.5 cm and in right side base of lower neck 3x0.5cm.” The doctor has opined that death was due to maemorrhage And shock as a result of multiple stab injuries and nature of death is homicidal in nature. The doctor vide Ex.P-6 informed to the SHO that the knife seized could have caused the said injuries (mentioned in the PM report) to the deceased. Jeans pant stains with blood and full shirt stains with blood were seized from appellant Deepak Rajak vide Ex.P-8. Spot map was prepared by 4 the investigating officer vide Ex.P-11. Clothes of the deceased were seized vide Ex.P-12. Bloodstained soil, plain soil, full shirt and shoes of deceased Chandrahas were recovered from the spot vide Ex.P-13. Full shirt and full pant were seized from appellant Laxmi Prasad Rajak vide Ex.P-14. Appellant Laxmi Prasad Rajak was arrested on 13.11.2020 vide arrest memo Ex.P-15. Appellant Deepak Rajak was arrested on 14.11.2020 vide arrest memo Ex.P-16. Memorandum statement of juvenile accused Sandeep Rajak was recorded vide Ex.P-18 and on the basis of his memorandum statement, knife was seized from him vide Ex.P-19. T-shirt and lower were seized from juvenile accused Sandeep Rajak vide Ex.P-20. Marksheet of class 5th of juvenile accused Sandeep in which his date of birth has been mentioned as 07.12.2004 was seized vide Ex.P-21. Seized articles were sent to FSL for chemical examination vide Ex.P-25 and as per FSL report (Ex.P-27), blood was found on soil (Article A) seized from the spot, shirt (Article C) seized from the deceased, shoe (Article D1) of right leg of the deceased, shoe (Article D2) of left leg of the deceased, full shirt (Article E) seized from accused Laxmi Prasad Rajak, lower (Article G) seized from juvenile accused Sandeep, t-shirt (Article H) seized from juvenile accused Sandeep, jeans pant (Article I) seized from accused Deepak Rajak, shirt (Article J) seized from accused Deepak Rajak, knife (Article K) seized from juvenile accused Sandeep Rajak, jeans pant (Article L) seized from the deceased, full shirt (Article M) seized from the deceased 5 and underwear (Article N) seized from the deceased and human blood was found on shirt (Article C) seized from the deceased, shoe (Article D1) of right leg of the deceased, shoe (Article D2) of left leg of the deceased, full shirt (Article E) seized from accused Laxmi Prasad Rajak, lower (Article G) seized from juvenile accused Sandeep, t-shirt (Article H) seized from juvenile accused Sandeep, Article K knife seized from juvenile accused Sandeep and Article N underwear of the deceased. 5. 5. The appellants were charge-sheeted in the Court of Judicial Magistrate First Class, Raipur Kota for offence under Sections 302/34 of the IPC and Sections 25 & 27 of the Arms Act, who in turn, committed the case to the Court of Sessions, Raipur, from where the Seventh Additional Sessions Judge, Raipurn received the case on transfer for trial in accordance with law. The appellants / accused abjured the guilt and entered into defence. 6. In order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 27 documents Exs.P-1 to P- 27. The statements of the accused/appellants were recorded under Section 313 of the CrPC, in which they denied guilt. However, the accused has examined none in their defence nor exhibited any document in their support. 7. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 26.10.2023, convicted the appellants under Section 302/34 of the IPC and 6 sentenced them as aforementioned, against which, this criminal appeal has been preferred. 8. Mr.Vikas Shrivastava, learned counsel for the appellants submits that the prosecution has failed to bring home the evidence of clinching nature and the trial Court has convicted them by recording a finding which is perverse to the record. He would further submit that the statement of Hemant Kumar Sahu (PW-6) is not reliable and his conduct could create grave suspicion regarding his presence at the place of incident and make his evidence unreliable. He also submits that learned trial Court failed to appreciate that there are contradictions and omissions in the statements of the witnesses and they turned hostile and have not supported the case of the prosecution. As such, criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 9. On the other hand, Mr.S.S.Baghel, learned Deputy Government Advocate, appearing for the respondent/State, supports the impugned judgment and submits that postmortem of the deceased was conducted by Dr.M.Nirala (PW-3) vide Ex.P-5 in which he has clearly opined that death of the deceased was due to haemorrhage and shock as a result of multiple stab injuries and was homicidal in nature which the trial Court has rightly held. He further submits that in the instant case, nature of evidence is direct evidence of Hemant Kumar Sahu (PW-6) and he has witnessed the incident and has rightly been found reliable by the 7 trial Court and in view of statement of Hemant Kumar Sahu (PW- 6), the trial Court has rightly convicted the appellants herein for offence under Section 302/34 of the IPC, which calls no interference. 10. We have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 11. The first question for consideration would be, whether death of deceased Chandrahas Sahu was homicidal in nature, which the trial Court has returned the finding in affirmative. 12. Dr.M.Nirala (PW-3) has examined the dead body of the deceased and submitted his report Ex.P-5, in which he has clearly opined that death of the deceased was due to haemorrhage and shock as a result of multiple stab injuries and was homicidal in nature and it can be caused by knife (article 'K') seized as per memorandum statement of juvenile conflict with law. 13. After hearing learned counsel appearing for the parties and after going through the records, we are of the considered opinion that the finding recorded by learned trial Court that death of Chandrahas Sahu was homicidal in nature is the finding of fact based on evidence available on record, which is neither perverse nor contrary to record. 14. The next question for consideration would be, whether the appellants are author of the crime ? 8 15. It is a settled principle of law that for convicting the accused with the aid of Section 34 of the IPC the prosecution must establish prior meetings of minds. It must be established that all the accused had preplanned and shared a common intention to commit the crime with the accused who has actually committed the crime. It must be established that the criminal act has been done in furtherance of the common intention of all the accused. 16. In Suresh and Another v. State of Uttar Pradesh, (2001) 3 SCC 673 R.P. Sethi, J. in his concurring judgment (for himself and B.N. Agarwal, J.) on the question of common intention has observed by the Supreme Court: “38. Section 34 of the Penal Code, 1860 recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of 9 occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. 39. The dominant feature for attracting Section 34 of the Penal Code, 1860 (hereinafter referred to as “the Code”) is the element of participation in absence resulting in the ultimate “criminal act”. The “act” referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from 10 the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.” 17. In Rajesh Kumar v. State of Himachal Pradesh, (2008) 15 SCC 705 the Supreme Court had elucidated and laid down the following principles as applicable to Section 34 IPC: “13. Section 34 has been enacted on the principle of joint liability in the doing 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 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 11 was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of 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.” 18. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or pre-arranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, 12 nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants. Further, the expression/term “criminal act” in Section 34 IPC refers to the physical act, which has been done by the co-perpetrators/participants as distinct from the effect, result or consequence. In other words, expression “criminal act” referred to in Section 34 IPC is different from “offence”. 19. In the present case, knife was seized from the juvenile conflict with law and there is no evidence on record that the present appellants pre-arranged plan and have actively participated in murder of the deceased nor any incriminating article has been seized from them. 13 20.In the present case, Hemant Kumar Sahu (PW-6) has stated in para 1 of his evidence that Chandrahas Sahu was his elder brother, he was a contractor. Road work was going on in Dhebar city, this road was being built by his brother Chandrahas Sahu, Roop Ram and another person. He had come to his brother’s place at that time to help in road construction. Laxmi Prasad Rajak was getting sand but the sand did not come due to which the labourers were sitting for a long time, due to this there was a fight between Roop Ram and Laxmi Prasad, his brother Chandrahas was trying to resolve this fight, after that the accused wearing full blue shirt standing in the Court caught the hand of his brother Chandrashas Sahu. In para 2 of his evidence, he has stated that Chandrahas Sahu was freeing himself from the accused wearing a blue shirt when his hand was caught by him. FDI four wheeler was parked at his place, while his brother Chandrahas Sahu was freeing his hand from the accused wearing a blue shirt, the angle of the said vehicle hit his brother Chandrahas Sahu’s head due to which Chandrahas Sahu suffered a head injury. After that, the accused’s son who was standing in the court wearing a red shirt came whose name is Sandeep Rajak. In para 3 of his evidence, he has stated that Sandeep Rajak had a knife with him and he killed Chandrahas Sahu with this knife. Sandeep Rajak stabbed Chandrahas Sahu in chest near heart. After that, he took Chandrahas Sahu to the hospital for treatment. In para 4 of his evidence, he has stated that 14 Chandrahas Sahu was taken to Mathpuraina Hospital for treatment, but no treatment was given there, then Chandrahas Sahu was taken to Mekahara Hospital where the doctor said that he had died. In para 5 of his evidence, he has admitted that appellant Laxmi Prasad wearing red shirt was present at the place of incident and was also watching the incident. He has also admitted that when accused Deepak Rajak was holding the hand of his brother Chandrahas Sahu, appellant Laxmi Prasad did not try to free his brother. He has also admitted that at that time appellant Laxmi Prasad’s son Sandeep Rajak took out the knife from his pocket and stabbed his brother Chandrahas Sahu in chest. He has also admitted that his brother Chandrahas Sahu died due to knife attack. In para 9 of his cross-examination, he has admitted that after Sandeep Rajak stabbed Chandrahas, no other accused present there had any fight with Chandrahas. In para 10 of his cross-examination, he has admitted that Sandeep Rajak stabbed Chandrahas with knife only once. He has also admitted that he only saw Sandeep stabbing. He cannot tell from where did Sandeep get the knife, who gave him knife. He has also admitted that only Sandeep was involved in the incident and incident that happened with Chandrahas Sahu and the accused present there had no role in it. 21. Roop Ram Sahu (PW-1), Gopal Kumar Rajak and Yogesh Sahu (PW-8) have turned hostile and they have not supported the case of the prosecution. As per their evidence, they were not present at 15 the time of incident and unknown about the incident and also do not know which persons have caused injuries to the deceased. 22.Manthir Nishad (PW-11) has admitted in para 6 of his cross- examination that at the time of incident it was dark at 6 P.M. He has admitted that due to darkness and the place of incident being far away, they did not see related to the incident. 23. Reverting to the facts of the present case as the prosecution has failed to prove the involvement or active participation of the present appellants in crime in question and as per the evidence of witness Hemant Kumar Sahu (PW-6), after Sandeep Rajak stabbed Chandrahas, no other accused present there had any fight with Chandrahas and the doctor has opined that death was due to haemorrhage and shock as a result of multiple stab injuries. As such, prosecution has failed to prove the active participation of the present appellants in crime in question. 24. Considering the entire evidence available on record, particularly the evidence of Hemant Kumar Sahu, evidence of Dr.M.Nirala (PW-3) who has clearly opined that death was due to haemorrhage and shock as a result of multiple stab injuries and knife was recovered from juvenile accused Sandeep Rajak and no any incriminating article has been seized from the possession of the present appellants, the appellants have no knowledge that juvenile conflict with law was having knife in his possession, further considering the fact that no one seen the appellants 16 assaulting/causing injuries to the deceased and also considering the mitigating the circumstances of the case, we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellants for offence under Section 302/34 of the IPC and benefit of doubt ought to have given to them. 25. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 26.10.2023 passed by the Seventh Additional Sessions Judge, Raipur in Sessions Case No.89/2021 is hereby set-aside. The appellants stand acquitted from the charge under Section 302/34 of the IPC. Appellant No.1-Laxmi Prasad Rajak is in jail. He be set at liberty forthwith, unless required in any other case. However, appellant No.2-Deepak Rajak is on bail. He is not required to surrender. His bail bonds are cancelled and sureties stands discharged. 26. Keeping in view of the provisions of Section 437-A CrPC (Now Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023), the appellants are directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties each in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for 17 grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 27. The Trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Bablu