A division bench of the Madhya Pradesh High Court comprising of Hon'ble Shri Justice Sujoy Paul and Justice Amar Nath modified the session’s court conviction of two appellants on account of the prosecution’s failure to establish a prearranged ‘common intention’ of the accused-appellants. The court held that all of the necessary ingredients of Section 34 of the IPC were not being fulfilled in the absence of any motive or intention.
Brief Facts:
In short, the prosecution story is that on 04/08/2011, Rajkumar Singh Lodhi lodged a report at the police station that there was a previous enmity between his family and the present appellants. In view of the previous record of enmity, the complainant parties came back from a Court hearing. At around 10:00 O’clock on 04/08/2011, he was discussing the case with his father Ratan Singh. At that point of time, both the appellants started using abusive language against the father of the complainant. When the father of complainant Ratan Singh asked them not to use abusive language, appellant No.1 Kanchedi assaulted him by means of a lathi on his head, whereas appellant No.2 Phoolsingh assaulted him on his back by means of lathi. Ratan Singh fell and on the next day succumbed to the injuries.
In the sessions court, the 1st appellant Kanchedi was convicted under Sections 302, 323/34 of the IPC resulting in rigorous imprisonment for life along with fine and the 2nd appellant Phoolsingh was convicted under Sections 302/34, 323/34 of the IPC esulting into rigorous imprisonment for life along with fine. The appellants then approached the Madras High Court by way of a criminal appeal.
Contentions of the Appellants:
The appellants submitted that in the impugned session’s court judgment, it is nowhere shown that the prosecution established that a common intention was developed between both the appellants to murder Ratan Singh. Mere participation by appellant No.2 Phool Singh will not mean that he had common intention as required under Section 34 of the IPC. Learned counsel for the appellants placed reliance on the judgment of the Apex Court in the case of Jugut Ram Vs. The State of Chhattisgarh, AIR 2020 SC 4395 submitted that lathi is a common item carried by the villagers in the country. Thus, the use of lathi, by no stretch of the imagination can lead to a conclusion that they were armed with a weapon with a premeditated mind to murder the deceased person. The incident had taken place in the spur of the moment without there being any premeditation. Thus, the necessary ingredients for attracting Section 302 of IPC are totally absent.
The appellants further contended that as held in the case of Chhota Ahirwar Vs. State Of Madhya Pradesh, AIR 2020 SC 1150, mere participation in the incident of assault is not sufficient to draw the conclusion of premeditated intention. Thus, Section 34 of the IPC cannot be pressed into service.
Contentions of the Respondent:
By supporting the impugned session’s court judgment, the learned government advocate submitted that there was a previous enmity between the parties, which is evident from the FIR itself. Because of said previous enmity and with a premeditated mind, the appellants started using abusive language with Ratan Singh and when he resisted, assaulted him brutally by means of lathi. He described the injuries caused to Ratan Singh. In addition, it is submitted that the head injury was caused by appellant No.1 Kanchedi. When Ratan Singh fell down because of that injury, another injury was caused by appellant No. 2 Phool Singh on his back. This itself shows that there was a ‘common intention’ of the parties to cause the death of Ratan Singh. Thus, the Court below has not committed any error of fact or law in holding both the appellants as guilty under Section 302 of IPC.
Observations of the Court:
The court accepted the argument given by the appellant’s advocate with respect to the judgment of Apex Court in the case of Jugut Ram Vs. The State of Chhattisgarh, AIR 2020 SC 4395 and reiterated that merely because the appellants were carrying lathi or assaulted by means of lathi, it cannot be presumed that there was any premeditation to kill Ratan Singh. The circumstances, manner of assault, nature and number of injuries need to be considered to decipher the intention or knowledge as the case may be.
On the question of whether there was a ‘common intention’ or not, the court again accepted the appellant’s argument w.r.t., the apex court judgment in Chhota Ahirwar Vs. State Of Madhya Pradesh, AIR 2020 SC 1150 and held that the existence of a prearranged plan has to be proved either from the conduct of the accused or from circumstances, or from any incriminating facts. In the court’s opinion, the prosecution could not establish a prearranged common intention of the accused-appellants. Thus, necessary ingredients for attracting Section 34 of the IPC were held to be absent.
The court further held that in absence of any ‘motive’ or ‘intention’ to murder, the appellant No. 1 can be held guilty for committing offence under Section 304 Part-II of IPC. Thus, his conviction deserves to be converted into Section 304 Part-II and since he has undergone sentence of more than 9 years, it is a sufficient sentence, and he can be treated to have undergone the necessary sentence. So far appellant No. 2 Phoolsingh was concerned, the court held that the injury caused by him was neither on a vital body part nor was fatal in nature. At best, he could be held guilty for committing an offence under Section 323 of IPC.
Decision of the Court:
The appeal was partly allowed. The impugned judgment was modified. The appellant No.1 Kanchedi was held guilty for committing offence under Section 304 Part-II, whereas appellant No. 2’s conviction was modified to Section 323 of IPC.
Case Title: Kanchedi and anr. vs The State of Madhya Pradesh
Coram: Hon'ble Shri Justice Sujoy Paul and Justice Amar Nath (Kesharwani)
Case No.: CRIMINAL APPEAL NO.1375/2015
Advocate for the Appellants: Shri Kapil Pathak
Advocate for the Respondents: Shri Yogesh Dhande
Read Judgment ;
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