(Cr.A.No.267/2019) 2025:CGHC:59346-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 267 of 2019 {Arising out of judgment dated 29-1-2019 in Sessions Trial No.90/2018 of the 4th Additional Sessions Judge, Raipur} Judgment reserved on: 27-11-2025 Judgment delivered on: 5-12-2025 Judgment uploaded on: 5-12-2025 1. Gajanand Nirmalkar, Aged about 38 years, S/o Late Budhuram, (In Jail) 2. Smt. Punni Bai Nirmalkar, Aged about 64 years, W/o Late Budhuram, 3. Smt. Pramila Bai Nirmalkar, Aged about 36 years, W/o Gajanand, All are R/o Village Bodra, Police Station Arang, District Raipur, Chhattisgarh. ... Appellants versus State of Chhattisgarh, Through Station House Officer, Police Station Arang, District Raipur, Chhattisgarh. ... Respondent For Appellants : Mrs. Fouzia Mirza, Senior Advocate with Mr. Navin Shukla, Advocate. For Respondent : Mr. H.A.P.S. Bhatia, Panel Lawyer. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ. SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.12.05 18:23:51 +0530 (Cr.A.No.267/2019) C.A.V. Judgment Sanjay K. Agrawal, J. 1. Three appellants herein have preferred this appeal under Section 374(2) of the CrPC calling in question legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 29-1-2019 passed by the 4th Additional Sessions Judge, Raipur in Sessions Trial No.90/2018, by which they have been convicted and sentenced as under, with a direction that all the sentences will run concurrently: - Conviction Sentence Section 323 read with Section 34 of the IPC Rigorous imprisonment for one year & fine of ₹ 100/-, in default, additional rigorous imprisonment for one month. Section 302 read with Section 34 of the IPC Imprisonment for life & fine of ₹ 300/-, in default, additional rigorous imprisonment for two months. Section 450 of the IPC Rigorous imprisonment for five years & fine of ₹ 100/-, in default, additional rigorous imprisonment for one month. 2. Case of the prosecution, in short, is that on 10-1-2018, at about 6 p.m., at Village Bodra, Police Station Arang, District Raipur, all the three appellants herein, in furtherance of their common intention, trespassed into the house of Bharat Lal Chandrakar (PW-1) and committed marpit and also caused the murder of his son Parmeshwar Chandrakar and thereby committed the offence. Appellant No.2 is mother of appellant No.1 and appellant No.3 is wife of appellant No.1. One more co-accused Jitendra, who is son of appellant No.1, being minor, is being tried separately by the Juvenile (Cr.A.No.267/2019) Justice Board. FIR was lodged by Bharat Lal Chandrakar (PW-1) vide Ex.P-2. Merg was recorded vide Ex.P-1 and inquest was prepared vide Ex.P-4. Dead body was sent for autopsy to Community Health Centre, Arang where Dr. B.K. Chandrawanshi (PW-7) conducted autopsy vide Ex.P-16 and found two injuries on vital parts of the body and he opined the cause of death to be grievous injuries on vital organ i.e. heart and that the death was homicidal in nature. Spot map was prepared by the Patwari vide Ex.P-13. The Investigating Officer also prepared spot map vide Ex.P-5 in shape of Crime Details Form. Pursuant to the disclosure statement of appellant No.1 (A-1) recorded vide Ex.P-7, knife and clothes were seized from him vide Exs.P-8 & P-9. Seized articles were sent for chemical analysis to the FSL, Raipur and in the FSL report Ex.P-32, blood was found on Art. ‘A’ – cotton seized from the place of incident, Art. ‘G’ – full shirt of A-1, Art. ‘M’ – gamcha of the deceased and Art. ‘I’ – knife seized from A-1. 3. Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellants were charge-sheeted for offences under Sections 323 read with Section 34, 302 read with Section 34 & 450 of the IPC and the case was committed to the Court of Session, Raipur from where the learned 4th Additional Sessions Judge, Raipur received the case on transfer for trial. 4. The prosecution, in order to prove the offence against the appellants, examined as many as 9 witnesses and brought on record 32 documents Exs.P-1 to P-32. The defence has not examined any (Cr.A.No.267/2019) witness, however, brought on record two documents namely, Ex.D-1 – statement of Bharatlal Chandrakar and Ex.D-2 statement of Meena Bai, recorded under Section 161 of the CrPC, in support of its case. 5. The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellants for offence under Sections 323 read with Section 34, 302 read with Section 34 & 450 of the IPC, against which they have preferred this appeal. 6. Mrs. Fouzia Mirza, learned counsel appearing on behalf of the appellants, would submit that the eyewitnesses to the incident are Bharat Lal Chandrakar (PW-1), Gyaneshwari Chandrakar (PW-2) and Meenabai Chandrakar (PW-3), who have stated that the appellants entered the house and asked about the deceased, thereafter, A-1 stabbed deceased Parmeshwar with a knife on his chest. She would further submit that independent witness Baldau Chandrakar (PW-5) has stated that the injury was inflicted solely by A-1 who was holding the knife, therefore, A-2 & A-3 namely, Smt. Punni Bai Nirmalkar & Smt. Pramila Bai Nirmalkar, aged about 64 years and 36 years, respectively, at the time of incident, may be granted the benefit of doubt. She would also submit that A-2 & A-3 have not done any overt act. As per the medical report, only two stab injuries were found on the body of the deceased and the death was caused due to grievous injury on the vital organ of the body i.e. chest which is also evident from the statement of Dr. B.K. Chandrawanshi (PW-7). Page 5 of 16 (Cr.A.No.267/2019) 7. Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing on behalf of the State/respondent, would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellants beyond reasonable doubt. He would further submit that as per the statements of Gyaneshwari Chandrakar (PW- 2) & Meenabai Chandrakar (PW-3), both the lady appellants (A-2 & A-3) caught hold of deceased Parmeshwar and thereafter, A-1 inflicted injuries and thus, A-2 & A-3 have also participated in the crime in question in furtherance of common intention. Therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 9. The first question whether the death of deceased Parmeshwar Chandrakar was homicidal in nature, has been answered in affirmative by the trial Court by relying upon the statement of Dr. B.K. Chandrawanshi (PW-7), who has proved the postmortem report Ex.P-16, which is the correct finding of fact based on the evidence available on record and we hereby affirm the said finding. 10. All the three appellants have been charged for offences under Sections 323 read with Section 34, 302 read with Section 34 & 450 of the IPC. The argument of learned Senior Counsel appearing on behalf of the appellants is that common intention by A-2 & A-3 who (Cr.A.No.267/2019) are said to be aged about 64 years & 36 years, respectively, at the time of incident, has not been established. 11. The question would be, whether Section 34 of the IPC is attracted in the facts of the present case to convict the appellants for offence under Section 302 of the IPC. At this stage, it would be appropriate to notice Section 34 of the IPC which reads as follows: - “34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 12. A focused glance of the aforesaid provision would show that the essence of Section 34 of the IPC is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result and such consensus can be developed at the spot also. Thus, Section 34 is intended to cover a situation wherein the accused persons have done something with common intention to constitute a criminal act. 13. In the matter of Barendra Kumar Ghosh v. King Emperor1, it has been held as follows: - “... Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it.” 1 AIR 1925 PC 1 (Cr.A.No.267/2019) 14. In the matter of Mahbub Shah v. King Emperor2, it has been held as under:- “... Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say 'the common intentions of all', nor does it say 'an intention common to all'. Under the section the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.” 15. Thereafter, the Constitution Bench of the Supreme Court in the matter of Mohan Singh v. State of Punjab3, while dealing with the scope of Section 34 of the IPC, held as under: - “13. ... Like Section 149, Section 34 also deals with cases of constructive liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. 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.” 2 AIR 1945 PC 118 3 AIR 1963 SC 174 (Cr.A.No.267/2019) 16. In the matter of Suresh v State of U.P.4, Thomas, J, speaking for the Supreme Court has held two conditions precedent which are imperative for applying Section 34 of the IPC, which are as under: - “23. Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.” 17. In the matter of Lallan Rai v. State of Bihar5, their Lordships of the Supreme Court while relying upon the dictum laid down in Barendra Kumar Ghosh (supra) and Mohan Singh (supra), have held 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. It has been stated therein that such consensus can be developed on the spot, but in any case, such a consensus must be present in the commission of the crime itself. 18.In the matter of Nagaraja v. State of Karnataka6, their Lordships of the Supreme Court have held that to impose vicarious liability under Section 34 of the IPC: (1) common intention, and (2) participation of accused in the commission of an offence must be proved, and further held that prosecution is bound to prove the factum of common intention amongst the accused persons. 4 (2001) 3 SCC 673 5 (2003) 1 SCC 268 6 (2008) 17 SCC 277 (Cr.A.No.267/2019) 19. In the matter of Virendra Singh v. State of Madhya Pradesh7, their Lordships of the Supreme Court have held that liability under Section 34 of the IPC can arise only when two conditions stand fulfilled i.e. firstly, mental element or intention to commit criminal act conjointly with another or others; and secondly, actual participation in one form or the other in commission of crime. Section 34 is intended to cover a case where a number of persons act together and on facts of case it is not possible for prosecution to prove as to which of the persons who acted together, actually committed the case. Under Section 34, it is the intention to commit the crime and accused can be convicted only if such intention has been shared by all accused. 20.In the matter of Syed Yousuf Hussain v. State of Andhra Pradesh8, the Supreme Court has held that to get Section 34 of the IPC attracted, certain conditions precedent are to be satisfied. The act must have been done by more than one person and they must have shared a common intention either by omission or commission in effectuating the crime. It is always not necessary that every accused must do a separate act to be responsible for the ultimate criminal act. What is required is that an accused person must share the common intention to commit the act. 21. Similarly, in the matter of Vijendra Singh v. State of Uttar Pradesh9, their Lordships of the Supreme Court have reiterated the 7 (2010) 8 SCC 407 8 (2013) 4 SCC 517 9 (2017) 11 SCC 129 (Cr.A.No.267/2019) principles of law for applicability and scope of Section 34 of the IPC and summarised the principles therein by holding as under: - “28. 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 Kripal v. State of U.P.10.) In Bharwad Mepa Dana v. State of Bombay11, 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.” 22. Furthermore, in the matter of Chellappa v. State through the Inspector of Police12, with regard to common intention, the Supreme Court has held that common intention shared by the accused, should be anterior in time to commission of offence, but may develop on the spot, when crime is committed. 10 AIR 1954 SC 706 11 AIR 1960 SC 289 12 (2020) 5 SCC 160 (Cr.A.No.267/2019) 23. In the matter of Ezajhussain Sabdarhussain and another v. State of Gujarat13, their Lordships of the Supreme Court have held that precedents cannot be used to establish common intention, common intention has to be found out from facts of each case and mere similarity of facts of one case cannot be used to determine existence of common intention in another case. Their Lordships observed as under: - “22. Other than the allegation that the accused persons caught hold of deceased Mohammad Shakil, there is no other instigating action or overt act attributed to the present appellant-accused actively participating in the commission of crime as alleged and from the conduct of the accused persons, it seems that there was no meeting of minds to form pre- arranged plan. It is true that it can be developed at the spur of the moment but there must be pre-arrangement and premeditated concert which is the requirement of law for applicability under Section 34 IPC and from the case of the prosecution, the mere fact that appellant-accused caught hold of deceased Mohammad Shakil facilitating the other accused persons to come with a knife and gupti and give blows, it cannot be said that the appellant-accused shared common intention with the other accused persons keeping note of the fact that in the complaint which was in the first instance registered for the alleged incident by Accused 1 Iftekharhussain Sabdarhussain, he only recorded the presence of Accused 2 Shefakathussain Sabdarhussain but the time when the complaint was registered at the instance of the present offence by Shamimbanu (PW 1) at 2.00 p.m., the present appellant- accused were also intentionally implicated. Certainly it creates a doubt of their false implication and their presence from the prosecution evidence on record appears to be clouded with suspicion and in our considered view, the present appellants cannot be held guilty of the offence under Section 302 with the aid of Section 34 IPC.” 24. Similarly, in the matter of Krishnamurthy alias Gunodu and others v. State of Karnataka14, the Supreme Court has laid down 13 (2019) 14 SCC 339 14 (2022) 7 SCC 521 (Cr.A.No.267/2019) the principles with regard to fastening of vicarious liability with the aid of Section 34 of the IPC and held as under: - “31. Given the acts attributed to Thimmappa and Gopala, the assault by Krishnamurthy and the resultant outcome were unexpected. We are also not prepared to hold that these two accused should have known the final outcome, or it was known to them, or it was a reasonably possible outcome of the preconcert/contemporaneous engagement or a manifestation of mutual consent for carrying out a common purpose. We, therefore, would not hold them guilty for the offence under Section 300 or even Section 299 IPC on the ground that they shared common intention as understood on application of Section 34 IPC.” 25. In the matter of Hardev Singh and another v. The State of Punjab15, the Supreme Court with regard to Section 34 of the IPC held as under: - “9. The view of the High Court that even the person not committing the particular crime could be held guilty of that crime with the aid of Section 34 of the Penal Code if the commission of the act was such as could be shown to be in furtherance of the common intention not necessarily intended by every one of the participants, is not correct. The common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention. Then only others can be held to be guilty. In this case assault on Tej Kaur by appellant Hardev Singh was his individual act. There was no common intention to commit the murder or cause grievous hurt to anybody. Circumstances are completely lacking to lead us to any such inference.” 26. Very recently, their Lordships of the Supreme Court, in the matter of Constable 907 Surendra Singh and another v. State of Uttarakhand16, with regard to applicability of Section 34 of the IPC, held as under: - 15 (1975) 3 SCC 731 16 (2025) 5 SCC 433 (Cr.A.No.267/2019) “30. By now it is a settled principle of law that for convicting the accused with the aid of Section 34 IPC the prosecution must establish prior meetings of minds. It must be established that all the accused had pre-planned 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. Reliance in support of the aforesaid proposition could be placed on the following judgments of this Court in the cases of: (i) Ezajhussain Sabdarhussain v. State of Gujarat [(2019) 14 SCC 339 : (2020) 1 SCC (Cri) 352]; (ii) Jasdeep Singh v. State of Punjab [(2022) 2 SCC 545 : (2022) 1 SCC (Cri) 526]; (iii) Gadadhar Chandra v. State of W.B. [(2022) 6 SCC 576 : (2022) 2 SCC (Cri) 668]; and (iv) Madhusudan v. State of M.P. [(2024) 15 SCC 757 : 2024 SCC OnLine SC 4035] 31. In the present case, as observed by the learned trial Judge, the prosecution has failed to place on record any evidence to show that Accused 2, 3 and 4 (the appellants herein) had common intention with Accused 1 Jagdish Singh prior to Accused 1 Jagdish Singh's shooting at the deceased resulting in her death.” 27. Before considering the statement of eyewitness Bharat Lal Chandrakar (PW-1) and answering the question whether the two women appellants (A-2 & A-3) shared common intention with Gajanand Nirmalkar (A-1) in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgments, it would be appropriate to notice the statement of Smt. Sangeeta Chandrakar (PW-6). She has turned hostile and on being asked leading questions, she has stated that she and Pramila (A-3) were being escorted by deceased Parmeshwar in a motorcycle at (Cr.A.No.267/2019) Village Rasni where they used to prepare ready to eat food for children and on account of that, there was some altercation in between Smt. Sangeeta Chandrakar (PW-6), A-2 & A-3. 28.As such, it appears that A-1 has developed some ill-feeling against deceased Parmeshwar, as Parmeshwar used to escort his (A-1) wife A-3 & Smt. Sangeeta Chandrakar (PW-6) to a village in his bike, as A-3 was involved in cooking ready to eat food with PW-6 consequent to which, it is the case of the prosecution that all of a sudden, they have entered into the house of the deceased and A-1 has caused two stab injuries on the person of the deceased. 29. Bharat Lal Chandrakar (PW-1) – father of the deceased, did not say in his examination-in-chief that A-2 & A-3 had caught hold of the deceased and enabled A-1 to cause stab injury. On being asked leading questions, he has stated that the appellants have caught hold of the deceased and A-1 has caused stab injury and absconded. 30.It appears that there is no evidence on record that A-2 & A-3 were aware of the fact that A-1 was carrying knife with him while they proceeded along with him to the house of the deceased and it is also nowhere apparent on record that A-2 & A-3 had caught hold of the deceased to enable A-1 to cause stab injury. Except Bharat Lal Chandrakar (PW-1), none have said that A-2 & A-3 have caught hold of the deceased. As such, the prosecution was under obligation to prove that A-2 & A-3 have committed the overt act or they were having knowledge that A-1 might cause fatal injuries to deceased (Cr.A.No.267/2019) Parmeshwar resulting into his death. No overt act is said to have been caused by A-2 & A-3 and thus, overt act alleged to have been attributed to A-2 & A-3 has not been proved by the prosecution. As such, the prosecution has failed to establish pre-meeting of minds of A-2 & A-3 with A-1 prior to the commission of the above-stated offence by substantial evidence or by circumstantial evidence. Therefore, it is not established that A-2 & A-3 have shared common intention with A-1 to commit the murder of deceased Parmeshwar. As such, it is held that the trial Court is absolutely unjustified in convicting A-2 & A-3 for the offence punishable under Section 302 of the IPC with the aid of Section 34 of the IPC. 31. Thus, taking into consideration the evidence available on record, the factual scenario of the case on hand, taking into account the legal analysis and the principles laid down by the Supreme Court, we are of the considered opinion that the prosecution has not been able to prove the case against appellants No.2 & 3, Smt. Punni Bai Nirmalkar (A-2) & Smt. Pramila Bai Nirmalkar (A-3), respectively, beyond reasonable doubt for convicting them under Section 302 read with Section 34 of the IPC and accordingly, they are acquitted of the said charge. Since they are acquitted of the charge under Section 302 read with Section 34 of the IPC, they are also acquitted of the charge under Section 323 read with Section 34 of the IPC. Consequently, their conviction under Section 450 of the IPC is altered to Section 452 of the IPC and they are sentenced to the period already undergone by them, as they were in jail from 12-1-2018 at (Cr.A.No.267/2019) least till 17-12-2021, when they were granted bail by this Court. They are on bail. They need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. Consequently, the present appeal so far as it relates to A-2 & A-3 is partly allowed. 32. However, taking into consideration, the evidence of Bharat Lal Chandrakar (PW-1), Gyaneshwari Chandrakar (PW-2) – wife of the deceased and Meenabai Chandrakar (PW-3) – mother of the deceased, who had gone to the house of neighbour and came back, conviction of appellant No.1 Gajanand Nirmalkar (A-1) under Sections 302, 323 & 450 of the IPC is well merited. Consequently, conviction & sentences imposed upon A-1 under Sections 302, 323 & 450 of the IPC are maintained. 33. In the result, the appeal so far as it relates to A-1 is dismissed and that of A-2 & A-3 is partly allowed. 34. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Soma