Partly allowed

Abhinandan Mishra v. State Of Chhattisgarh

Chhattisgarh HC4 Mar 2022CRA/1095/2015

Case brief

AI extract

What is this about?

High Court allowed criminal appeals. Conviction of one appellant for murder was modified to culpable homicide. Other appellants were acquitted for lack of proved common intention.

What did the court decide?

Conviction under Section 302 IPC set aside; appellant Chatur Dhruv convicted under Section 304 part I IPC and sentenced to 10 years RI. Other appellants acquitted.

Abhinandan Mishra Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 947 of 2015

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Judgment Reserved on 10.02.2022

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Judgment Delivered on 04.03.2022

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Baldev @ Balbhadra S/o Gokul Harpal Aged About 26 Years R/o Krishna Nagar, Kota, Police Station - Saraswati Nagar, Raipur, Civil And Revenue District - Raipur Chhattisgarh.

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---- Appellant (in jail)

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Amanaka, Raipur District - Raipur Chhattisgarh., Chhattisgarh.

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--- Respondent

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AND

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Criminal Appeal No. 971 of 2015

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Chandan @ Chandramani S/o Guddu Nayak Aged About 23 Years R/o Krishna Nagar, Kota, Police Station Saraswati Nagar, Civil And Rev. Distt. Raipur Chhattisgarh.

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---- Appellant (in jail)

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Versus

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State Of Chhattisgarh Through Police Station Aamanaka, Raipur, Civil And Rev. District Raipur Chhattisgarh.

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--- Respondent

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AND

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Criminal Appeal No. 1008 of 2015

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Chatur Dhruv S/o Radhe Shayam Dhruv @ Radhe Aged About 24 Years R/o Rajiv Nagar, Mahoba Bazar, Police Station - Aamanaka, District - Raipur Chhattisgarh.

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Sanjay Dhruv S/o Santosh Dhruv Aged About 24 Years R/o Rajiv Nagar, Mahoba Bazar, Police Station - Aamanaka, District - Raipur Chhattisgarh.

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Ravi Netam @ Kanne S/o Raghu Lal Netam Aged About 24 Years R/o Rajiv Nagar, Mahoba Bazar, Police Station - Aamanaka, District - Raipur Chhattisgarh.

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---- Appellants (in jail)

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Versus

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State Of Chhattisgarh Through Police Station Aamanaka, Raipur, District Raipur Chhattisgarh.

--- Respondent

AND

Criminal Appeal No. 1095 of 2015

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Abhinandan Mishra S/o Rajendra Mishra, Aged About 20 Years R/o Rajeev Nagar Mahoba Bazar, Police Station Aamanaka, Civil And Revenue District Raipur, Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh Through Police Station Aamanaka, Raipur, District Raipur, Chhattisgarh.

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--- Respondent

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For the Appellants in
Cr.A. No.947 of 2015 &
Cr.A. No.1008 of 2015	: Shri Sachin Nidhi, Advocate.
For the Appellant in
Cr.A. No.971 of 2015	: Shri Amit Kumar Sahu, Advocate.
For the Appellant in
Cr.A. No.1095 of 2015	: Shri Rajnish Singh Baghel, Advocate.
For the Respondent/ State	: Shri Sudeep Kumar Verma, Deputy Government Advocate.

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Hon'ble Shri Justice Rajendra Chandra Singh Samant Hon'ble Shri Justice Arvind Singh Chandel

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CAV Judgment

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Per R.C.S. Samant, J.

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All these criminal appeals have been preferred against the impugned judgment of conviction and order of sentence dated 22.7.2015 passed by the Court of First Additional Sessions Judge, Raipur, District Raipur, Chhattisgarh in Sessions Trial No. 228 of 2014, in which appellant – Chatur Dhruv (Criminal Appeal No. 1008 of 2015) was convicted for the offence under Section 302 of the Indian Penal Code (for short 'the IPC') and rest of the appellants in all the appeals were convicted under Section 302 read with Section 34 of the IPC and all of them were sentenced with life imprisonment and to pay fine of Rs.25,000/- each and in default of payment of fine, to further undergo additional RI for two years.

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The prosecution case, in brief, is that on 10.8.2014 at about 3:00 pm, Ashuram Dhruv (deceased) alongwith Vikas Sahu (PW-2) and Bhupendra Dhruv (PW-1) were on their way to home. They found the appellants drinking and eating on the middle of the road and they had parked their motorcycle nearby obstructing the road. The deceased and his associates asked the appellants to give them way, on which, appellant – Chatur Dhruv brandished a knife and threatened to kill them. The deceased and his associates came back to his house. Ashuram Dhruv (deceased) was enraged because of the conduct of appellant - Chatur Dhruv. He then armed himself with a rod and went to the spot where the appellants were eating and drinking. Seeing Ashuram Dhruv and his associates, the appellants abused them, thrashed them and in between when this was going on, appellant – Chatur Dhruv took out his knife and stabbed Ashuram Dhruv on his chest, who fell down bleeding.

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Vikas Sahu (PW-2) and Ashwani Dhruv came to rescue Ashuram Dhruv (deceased), who was immediately taken to Medical College Hospital, Raipur, in an ambulance where he was declared dead. Bhupendra Dhruv (PW-1) lodged the morgue Intimation vide Ex. P/1 in police station Amanaka, Raipur and on his information, the First Information Report (Ex.P/2) was also lodged against appellants – Chatur Dhruv, Sanjay Dhruv and others. The police conducted the inquest procedure in which crime details form vide Ex.P/3 was prepared. Blood-stained soil and plain soil were seized from the spot of the incident vide Ex.P/4. The dead-body of the deceased was subjected to postmortem examination vide Ex.P/6. Dr. S.K. Bagh (PW-4) has opined that the cause of death was shock due to haemorrhage caused by the stab wound found on the chest of the deceased. Viscera of the

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deceased was preserved which was seized vide Ex.P/8. Appellant – Chatur Dhruv was apprehended and interrogated by the police and his memorandum statement Ex.P/10 was recorded, in which he made a statement for discovery of the knife. At the instance of appellant – Chatur Dhruv , one knife was seized vide Ex.P/11. The blood-stained clothes of appellant – Baldev @ Balbhadra were also seized. The appellants were formally arrested. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and on completion of the investigation, the charge-sheet was filed before the concerned Court.

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The trial Court framed charge against appellant – Chatur Dhruv under Section 302 of the IPC and the charges were framed against rest of the appellants under Section 302 read with Section 34 of the IPC. All the appellants denied the charges framed against them. The appellants pleaded innocence. The prosecution has examined as many as 10 witnesses. On completion of prosecution evidence, the appellants were examined under Section 313 of the Cr.P.C., in which the appellants denied all the incriminating evidence against them and further, they made a statement of innocence and false implication. No witness was examined in the defence. After giving an opportunity of hearing to the prosecution and defence, the learned trial Court delivered the impugned judgment by convicting and sentencing the appellants in the manner mentioned herein-above.

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It is submitted by counsel for the appellants in CRA No.947/2015, 1008/2015 and 1095/2015 that the conviction against the appellants is baseless and without any evidence of the prosecution beyond reasonable doubt. Bhupendra Dhruv (PW-1), who is an eyewitness, was declared

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hostile by the prosecution, therefore, he was not a reliable witness. Similarly, other witness – Sunil Sahni (PW-3) has also not supported the prosecution case. Further, according to the statement given by Vikas Sahu (PW-2) in his cross-examination, it was the deceased who had attacked appellant – Chatur Dhruv, who has then reacted, therefore, the case against appellant – Chatur Dhruv does not fall under Section 302 of the IPC, but it is a case of exception. Hence, his conviction may be possible either under Section 304 part I of the IPC or under Section 304 part II of the IPC, as there is evidence present that appellant – Chatur Dhruv was assaulted first by the deceased.

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Reliance has been placed on the judgment of Madras High Court in the case of Muthu vs. State of Tamil Nadu , reported in (2007) ILLJ 9 MAD. Reliance has also been placed on the judgment of Supreme Court in the case of K. Ravi Kumar vs. State of Karnataka , reported in (2015) 2 SCC 638 and the judgment of this Court in the case of Smt. Usha Bai and Ors. vs. State of Chhattisgarh , reported in 2019 (3) CGLJ 132 .

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It is further submitted that appellant – Chatur Dhruv had no intention to cause death of the deceased and according to the circumstances, it became inevitable for him to defend himself in which, he inflicted the knife injuries to the deceased, which turned out to be fatal. Hence, prayer has been made that the appeal be allowed and the conviction and sentence against appellant – Chatur Dhruv be reduced. There is no evidence of any overt-act regarding the other appellants, hence, they are entitled to be acquitted.

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It is submitted by counsel for the appellant on behalf of appellant – Chandan @ Chandramani in Cr.A. No. 971 of 2015 that this appellant has been arrayed as an accused on the basis of the memorandum statement given by the co-accused persons. No Test Identification Parade was held to

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identify this appellant and further, the evidence itself does not mention about any overt-act of this appellant. It is prayed that this appellant may be acquitted of the charge.

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Learned State counsel opposes the submissions and submits that the prosecution has proved its case beyond reasonable doubt. Bhupendra Dhruv (PW-1) has partially supported the prosecution case and further, the evidence of Vikas Sahu (PW-2) is clear and categorical. Although, there is no test identification parade conducted in the investigation, but the dock identification of the appellants by Vikas Sahu (PW-2) has not been specifically challenged by the defence in cross-examination. Similarly, dock identification has also been made by Bhupendra Dhruv (PW-1) and nonconducting of Test Identification Parade is not fatal, if the other evidence in this regard is convincing and it inspires confidence. Further, the witnesses of search and seizure have turned hostile, but the memorandum and seizure from appellant – Chatur Dhruv has been proved by Inspector – Smt. Vaijayantimala Tigga (PW-10), who is a reliable witness. It is further submitted that the stab injury inflicted upon the deceased has proved fatal which shows that there was an intention for causing death of the deceased. Appellant – Chatur Dhruv was armed with the knife and it was in the knowledge of the other appellants. None of them made any attempt to stop appellant – Chatur Dhruv and continued to be his associates until the injury was inflicted to the deceased, therefore, it is a clear case of murder with common intention. Learned trial Court has not committed any error in convicting and sentencing the appellants. Hence, the appeals be dismissed.

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Heard counsel for both the parties and perused the documents present on record.

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Death of deceased – Ashuram Dhruv due to stab injury is not disputed. Further, it is also not disputed that it was appellant – Chatur Dhruv who had inflicted the stab injury on the person of the deceased which has resulted in his death. The question raised regarding the identification of all the appellants is dealt with first. Bhupendra Dhruv (PW-1) has deposed before the Court that he knows appellant – Chatur Dhruv by name and he had seen the other appellants at the time of incident. He is the person who had lodged the morgue intimation Ex. P/1 and FIR Ex. P/2. In the FIR Ex.P/2 there is mention of only two names, namely, Chatur Dhruv and Sanjay Dhruv and their associates who are unnamed. The prosecution has declared this witness hostile on some aspects and the prosecutor has put leading questions in which, he has admitted that appellant – Chatur Dhruv, Sanjay Dhruv, a one-eyed boy and three others were present on the spot eating and drinking. He has also admitted other suggestions given. In cross-examination, no question has been put to him on the point of identification of the appellants/ accused persons in the dock. On one suggestion of the defence counsel, he has admitted that no identification of the appellants was conducted in the police station, but not a single suggestion has been given regarding incorrect identification of the appellants in the dock or that any of the appellant was not present on the spot and had not participated in the incident, therefore, his statement regarding identification of all the appellants is intact and unrebutted.

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Vikas Sahu (PW-2) does not know any of the appellants by name. Further, he has stated that he knows the appellant who had inflicted knife injury by face and similarly, he knows the other appellants by face only. In cross-examination, question has been put regarding the identification of the

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appellants made by the witness in this Court. Some discrepancies had been pointed out in his Court statement compared to his previous statement Ex.D/1 which are not material. Hence, the dock identification made by this witness is totally unrebutted and unchallenged and there is no reason to disbelieve the same. The other witness of the spot Sunil Sahni (PW-3) has stated that it were the appellants who were having some arguments with the deceased and one of the appellants had brandished the knife. He has not given any further statement because of which, he has been declared hostile, however, he has partially supported the prosecution case. In the crossexamination of this witness, there is also no suggestion given or no question put on the basis of which, his statement regarding presence of all the appellants on the spot where they were arguing with the deceased appears to be unchallenged statement.

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In the case of Ravi Kapur vs. State of Rajasthan , reported in (2012) 9 SCC 84 , it was held by the Supreme Court that the Code of Criminal Procedure does not oblige the investigating agency to necessarily hold the test identification parade without exception. It was further held that the Identification Parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named accused in the case are actually the culprits. The Identification Parade primarily belongs to the stage of investigation by the police. In the case of Suraj Pal vs. State of Haryana , reported in 1995 SCC (2) 64 , it has been held that the dock identification is acceptable, if it is otherwise found to be reliable and it has been similarly held in the case of Manju vs. State of NCT of Delhi , reported in 2010 (6) SCC 1 , in which, it was held by the Supreme Court that the identification of the accused in the

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dock for the first time would be permissible subject to confirmation by other corroborative evidence.

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The evidence in this case has to be examined in the light of this direction. The incident in this case has occurred on 10.8.2014. Witnesses – Bhupendra Dhruv (PW-1) and Vikas Sahu (PW-2) were examined on 2.2.2015 i.e. just after an interval of about 4 months. Another witness Sunil Sahni (PW-3) was examined on 3.2.2015, therefore, there was no inordinate delay between the date of incident and the examination of the witnesses before the Court. Further, the unchallenged statements of PW-1, 2 & 3 on the point of dock identification of the appellants is also a reason which needs to be considered. On this basis, it is held that the evidence of dock identification of all the appellants in the Court inspires confidence and there is no reason to hold otherwise.

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The other submission regarding the offence committed not being covered under the definitions of murder is taken into consideration. Bhupendra Dhruv (PW-1) has stated in his examination-in-chief that after the first incident when appellant – Chatur Dhruv brandished a knife to the deceased, deceased – Ashuram Dhruv came to his house got himself armed with some wire/rod like object and the witness also armed himself with a club and they rushed to the spot where the appellants were drinking and eating. It was after that the deceased was stabbed with knife by appellant – Chatur Dhruv. He has stated that Ashu Dhruv(deceased) was very much enraged and expressed his intention to go back and thrash the appellants. When the witness showed his disagreement, the deceased said that he will go alone, then the witness accompanied to the spot. In cross-examination, he has admitted that deceased – Ashuram Dhruv had hit with the rod on the back of

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appellant – Chatur Dhruv. Later on, he had changed his statement that he did not saw deceased – Ashuram Dhruv hitting the appellant – Chatur Dhruv. Sunil Sahni (PW-3) has not made any statement in this respect and there is no other witness to explain this circumstance. On appreciating this evidence of the circumstance which is showing that deceased – Ashuram Dhruv got enraged and was out of control who armed himself with something and rushed to the spot who was followed by Bhupendra Dhruv (PW-1) and Vikas Sahu (PW-2) and then the incident occurred. This fact that the deceased himself was armed with something because of which, appellant – Chatur Dhruv and others may have had an apprehension. Hence, it can be regarded as an act of sudden provocation. As there is no evidence to suggest that any fight had taken place between the appellants and the deceased and his associates, the only case present is that the appellants got provocated because of the act of the deceased himself who came rushing armed with a rod like substance and the apprehension of being attacked itself was a provocation enough to act in the manner in which appellant – Chatur Dhruv has acted. Hence, it is a case under exception 1 of Section 300 of IPC and therefore, the act of appellant – Chatur Dhruv appears to be covered under Section 304 part I of the IPC.

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It has been argued by the counsel for appellants that the appellants/accused persons apart from Chatur Dhruv had not participated in the commission of offence and there is no evidence of any overt act present against them. Bhupendra Dhruv PW-1 has stated that he was acquainted only with appellant Chatur Dhruv. He has denied knowledge about as to who had inflicted life injury on the deceased. This witness was declared hostile by the prosecution and leading questions were put to him, but he has not made any allegation accepting that appellant Sanjay took him to the side and there is no explanation as to why he was taken to the side. Vikas

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Sahu is an eyewitness of incident, who has stated that he followed deceased Ashu to the spot and saw that appellant Sanjay took Bhupendra to side. Another appellant Ravi Netam and appellant Chatur Dhruv both took Aashu with them. Then he saw that appellant Ravi caught hold of Aashu and appellant Chatur Dhruv stabbed him on his chest twice. Ravi Netam also caught hold of Sonu, brother of deceased Aashu, who was also stabbed with knife by appellant Chatur Dhruv. During this incident, remaining appellants namely-Baldev @ Balbhadra, Chandan @ Chandramani, Sanjay Dhruv fled from the spot on their motorcycle leaving behind appellant-Chatur Dhruv and Ravi Netam. In cross-examination, he has denied all adverse suggestions. He was confronted with his previous statement Ex.D-1, according to which, his statement before the Court regarding active participation of appellant Ravi Netam in catching hold of the deceased first and then catching hold of Sonu appears to be an improved statement, therefore, this statement cannot be held believable and acceptable. Sunil Sahni PW-3 has not stated anything specifically regarding participation of other appellants excepting the appellant Chatur Dhruv. The prosecutor had put specific asked leading question to him, that he saw Chatur Dhruv and others who had inflicted knife injury on Aashu Dhruv, deceased, on which the witness has replied that Chatur Dhruv had inflicted knife injury on the deceased.

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Presence of all appellants on spot is proved. Bhupendra Dhruv PW-1, Vikas Sahu PW-2 and Sunil Sahni PW-3 are the only witnesses who have seen the incident. Bhupendra Dhruv PW-1 has not made any specific statement regarding participation of appellants except appellant Chatur Dhruv. PW-2 Vikas Sahu made an improved statement in the Court stating about active participation of Ravi Netam, which cannot be taken into consideration. He has made other statement in his examination-in-chief, that during continuation of the incident, remaining appellants other than Chatur Dhruv and Ravi Netam had fled from the spot. The question is whether presence of all appellants other than Chatur Dhruv can be

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regarded as such that they are also responsible for the offence committed or not?

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Section 34 of IPC is reproduced as follows:-

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“[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.]”.

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Section 34 of IPC explains how a person shall be regarded to have furthered the common intention. This provision clearly speaks that acts have to be done by several persons in furtherance of common intention. After scrutiny of the evidence of eyewitnesses, we are of the view that the appellants other than Chatur Dhruv, had not acted in any manner at the time of incident either by encouraging appellant Chatur Dhruv or uttering any words or acting in any manner on the basis of which it can be held that they have acted in furtherance of common intention. In the case of Shankarlal Kachrabhai and Others vs State Of Gujarat, reported in AIR 1965 SC 1260. The three judge Bench held in paragraph No.5 as follows:-

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“To appreciate the argument of the learned counsel it would be convenient at this stage to note exactly the finding given by the High Court. The High Court found that the common intention of the accused was to kill Madha, that accused 1 to 4 shot at Rama mistaking him for Madha, as Rama had dressed himself in the habiliments similar to those in which Madha used to dress himself and, therefore, the accused shot at Rama under the mistaken belief that be was Madha. Section 34 of the Indian Penal Code reads "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."

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"To invoke the aid of s. 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. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other

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relevant circumstances of the case."

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Present is a similar case. There is no evidence of overt act regarding participation of appellants other than Chatur Dhruv. There is also no evidence regarding conduct of appellants other than Chatur Dhruv in the commission of offence that has been committed. Therefore, the prosecution has failed to prove the case against appellant Baldev @ Balbhadra, Chandan @ Chandramani, Sanjay Dhruv, Ravi Netam and Abhinandan Mishra. Hence, these appellants are entitled for acquittal.

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After considering the submissions, facts and circumstances and the evidence present in the case, we are of the considered view that the conviction against the appellant Chatur Dhruv is required to be modified. Hence, the appeal of Chatur Dhruv is allowed in part. The conviction and sentence against the appellant Chatur Dhruv under Section 302 of the IPC is set aside and instead he is convicted under Section 304 part I of the IPC. Appellant – Chatur Dhruv in Cr.A. No.1008 of 2015 is ordered to be sentenced with rigorous imprisonment of 10 years for the offence under Section 304 part I of the IPC alongwith fine of Rs.5000/-. The appellant Chatur Dhruv shall be required to undergo further, detention of 1 year of RI in case the fine amount is not paid by him.

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CRA No.947/2015 by appellant Baldev @ Balbhadra, CRA No.971/2015 by appellant Chandan @ Chandramani, CRA No.1008/2015 by appellant Sanjay Dhruv and Ravi Netam and CRA No.1095/2015 by appellant Abhinandan Mishra are allowed. These appellants are acquitted of all the charges levelled against them. The fine amount, if any, paid by them shall be refunded to them. These appellants are on bail. The bail bonds furnished by them shall remain in force for a further period of 6 months.

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Accordingly, these appeals stands disposed of.

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Sd/Sd/-

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(R.C.S. Samant) (Arvind Singh Chandel) Judge Judge

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Nimmi / Nisha

Abhinandan Mishra v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Abhinandan Mishra v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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