HIGH COURT OF CHATTISGARH AT BILASPUR
Cr. App. No 1196 of 1999
Ganesh Jangam
...Petitioners
Versus
State of M P
...Respondents
! Shri Vishnu Koshta and Shri N.P.Koshta, counsel for the appellant
^ Shri Pradeep Singh, Panel Lawyer for the State
Honble Shri Justice R.L. Jhanwar
Dated:02/07/2009
: Judgment
J U D G M E N T
(Delivered on 02 .07.2009) R.L.Jhanwar, J.
The appellant has preferred this appeal against the
judgment of conviction and order of sentence dated
22.3.1999, passed by the 2nd Additional Sessions Judge,
Jagdalpur at Bastar in S.T.No.309/1989, whereby the learned
2nd Additional Sessions Judge has convicted the appellant
under Section 326 of the IPC and sentenced him to undergo
R.I. for 5 years and to pay a fine of Rs.5,000/-, in default
of payment of fine to further undergo R.I. for 1 year.
The story of the prosecution in short is that on
2.3.1989, at about 1.15 p.m. Ganesh and Munendra assaulted
Shankar Prasad Tiwari (PW-5) with hand and fists. Shankar
Prasad Tiwari ran away from the spot and fell down.
Thereafter, Munendra assaulted him with knife on his back,
as a result of which, he became unconscious. Some persons
saw the incident and informed the complainant- PW1-
Rajeshwari about it. Rajeshwari lodged a First Information
Report (Ex.P/1) in the Police Station. The case was
registered against the present appellant and Munendra under
Section 307 read with Section 34 of the IPC. Injured
Shankar Prasad Tiwari was medically examined and
investigation took place. After completion of the
investigation, charge sheet was filed in the Court of Chief
Judicial Magistrate, Jagdalpur, who in turn committed the
case to the Sessions Judge. The learned Sessions Judge made
over the case to the 2nd Additional Sessions Judge,
Jagdalpur for trial.
The learned Additional Sessions Judge framed charges
against the appellant and Munendra under Section 307/34 of
the IPC, read over and explained it to them. Both of them
abjured the guilt and their defence was that they are
innocent and have been falsely implicated in this case.
During the course of trial, accused Munendra died,
therefore, the learned trial Court struck out the name of
Munendra, as the case against him has been abated.
The learned 2nd Additional Sessions Judge, after
evaluating the evidence available on record and hearing the
counsel for respective parties, acquitted the appellant-
Ganesh under Section 307 of the IPC; however, he convicted
and sentenced the appellant under Section 326 of the IPC.
I have heard learned counsel for the parties at length
and perused the record.
Rajeshwari (PW-1), who lodged the F.I.R. (Ex.P/1) has
stated that one Nanu Jangla came and told that her brother
Shankar Prasad Tiwari has been assaulted by Munna, she went
to the spot and saw that her brother was lying in
unconscious condition near the Mandir. She reported the
matter to the Police. She is not an eye-witness. The
injured (PW-5)- Shankar Prasad Tiwari, has stated that near
the Mahadev Mandir, the appellant & Munendra surrounded him
and assaulted him with hands and fists. He ran away and
fell down, thereafter; Munendra came there and assaulted him
with knife. He specifically stated that the appellant-
Ganesh did not assault him with knife. He nowhere stated
that when Munendra was assaulting him with knife, appellant
Ganesh in any way assisted Munendra. He also did not state
a single word that the appellant also took part in the
incident when he was assaulted with knife by Munendra.
The learned trial Court, for the injury caused by
knife, has convicted the appellant under Section 326 of the
IPC, whereas, from the evidence, it is evident that the
appellant neither assaulted Shankar Prasad Tiwari with knife
nor he assisted Munendra when he was inflicting the knife
injury. The learned trial Court held that there was no
common intention; therefore, the learned trial Court did not
convict the appellant with the aid of Section 34 of the IPC.
Section 34 of the IPC reads as follow-
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.
For deciding the facts that any act has been done in
furtherance of common intention, it is necessary to asses
the evidence minutely and to record a clear finding on the
material available on record. How a person by any of his
acts is liable for commission of any offence in furtherance
of common intention. If that person neither took any part in
the crime nor assisted the other accused person, who
committed the crime, only because prior to the incident he
was in the company of other accused, who committed the
crime, that alone, is not sufficient to hold him guilty for
committing the offence in furtherance of common intention.
In the instant case, Munendra and Ganesh were together
prior to the incident but when Munendra inflicted injury to
Shankar Prasad Tiwari with knife, the appellant neither
assisted Munendra in inflicting the knife injury nor he
himself assaulted Shankar Prasad Tiwari.
In the facts and circumstances of the case, there is no
evidence to convict & sentence the appellant for commission
of the offence under Section 326 of the IPC.
For the foregoing reasons, the appeal deserves to be
allowed. The judgment of conviction and order of sentence
passed by the trial Court against the appellant under
Section 326 of the IPC is set aside. The appellant is
acquitted of the charge under Section 326 of the IPC. He
shall be set at liberty forthwith.
J U D G E