Common intention for liability under Section 34 IPC can be inferred from circumstances and joint participation, not solely from direct evidence.

ORDER :

Prem Narayan Singh, J.

1. This criminal revision under Section 397 /401 of Cr.P.C.has been filed by the petitioners being aggrieved by the order dated 22.1.2022 passed by the Second Additional Sessions Judge, Ratlam, wherein charges under Sections 294 , 323, 34, 326, 34, 506(II) of IPC and 25(I-B)(B) of ARMS ACT has been framed against the petitioner.

2. As per the prosecution case, on 30/09/2020, the complainant Bharatlal lodged a report that while he was present at the tea shop of Krishna with Khima and Ratanlal, the accused Kailash and Suresh armed with iron pipe and axe came there and after some conversation Kailash hit him with iron pipe on his head and Suresh hit by Axe on his head. It was further alleged that Bherulal, Dharmendra, Lakhan and Manish also came there and assaulted him. On medical examination Bharatlal was found to have received grievous injury by sharp object over his left ankle and simple injury over his head. After the investigation the police has filed a charge sheet against all of the accused persons. The learned Trial Court by the impugned order dated 22/01/2022 has framed the charges against the petitioners as mentioned in para NO. 1.

3.Learned counsel for the petitioners submitted that Trial Court has failed to appreciate that there is no allegation in the chargesheet itself that all the accused. persons were sharing any common intention to cause the injury to the complainant Bharatlal, therefore the invocation of Section 34 IPC is unsustainable.Learned Trial Court has also failed to appreciate that there was nothing on record to show any previous enmity of the accused persons with Bharatlal, therefore, if any incident occurred spontaneously, the common liability cannot be fastened on all the accused persons simultaneously, thus, framing of charge with the aid of Section 34 IPC is illegal and unsustainable.As per the prosecution case itself only two of the accused persons namely Kailash and Suresh were present and beating Bharatlal who allegedly caused the two injuries noted in the medical examination, and the other accused persons namely Bherulal, Dharmendra, Manish and Lakhan came on the spot at later stage, therefore these accused persons could not be charged with the same liability with the aid of Section 34 IPC. He further contended that in the bail petition, Hon'ble High Court has opined that prima facie, the dispute is purely of civil nature, therefore, the charges framed against the petitioners are not in accordance with law, hence the charges framed by learned trial Court are not sustainable in the eyes of law and it is requested to set aside the same.

4. Learned counsel for the State vehemently opposed the contentions of the petitioners and submitted that defence of the petitioners cannot be considered at the stage of framing of charges. The opinion expressed in bail order is not binding upon the merits. Hence there is no infirmity or illegality in the order passed by the learned trial Court accordingly, the revision petition filed by the petitioners deserves to be dismissed.

5. In the considered opinion of this Court at this stage is that the only point of determination in this case is as to whether the order of learned trial Court is suffering from incorrectness, illegality or impropriety?

6. In the light of the revision petition and the arguments advanced by learned counsel for the parties, the impugned order of framing of charges has been scrutinized in purview of the available record.

7. On this aspect learned counsel