of M.P. Vs. Deshraj & Ors  Insc
53 (29 January 2004)
Raju & Arijit Pasayat. Arijit Pasayat,J.
this appeal challenge is to the correctness of judgment rendered by a Division
Bench of the Madhya Pradesh High Court which affirmed the conviction under
Section 323 read with Section 34 of the Indian Penal Code, 1860 (in short 'the
IPC') as recorded by the Trial Court in respect of respondents 1 to 10 and did
not accept prosecutions' plea that it was a case covered by Section 302 read with
Section 34 IPC. Eleven persons faced trial and the Trial Court held A-11 Toran
Singh to be not guilty. The accused persons were charged for commission of
offences punishable under Section 302 read with Section 34 IPC and Section 323
IPC for allegedly committing homicidal death of one Ramdin (hereinafter
referred to as 'the deceased') and causing injuries on Harbhan (PW-5), Brijbhan
(PW-10) and Bina Bai (PW-9). Trial Court while acquitting accused Toran Singh
held that the other accused persons were to be convicted under Section 323 read
with Section 34 IPC. The State of Madhya Pradesh filed appeal before the Madhya Pradesh High Court and the
same was dismissed by the impugned judgment.
appears respondent no.1-Darua had died on 15.6.1986, and that being so, the
appeal stands abated so far he is concerned.
facts as projected by the prosecution are as follows:
26.5.1980, about 8.15
a.m. PW-5 lodged first
information report with the police regarding alleged occurrence which took
place on the previous day i.e. 25.5.1980. There was an exchange of words
between Harbhan (PW-5) and Pratap Singh Thakur over payment of fare relating to
hire of bullock cart. According to the informant, the rent was fixed at Rs.15/-
but Pratap Singh Thakur wanted to pay Rs.13/-. When the exchange of words was
going on, the accused persons armed with various weapons arrived there and
accused Balkishan hit on the head of the deceased. The other accused persons
assaulted him with various weapons. The deceased ran inside the house for
protection. The accused persons continued to assault. When Brijbhan (PW-10) and
Bina (PW-9) tried to rescue accused, Maharaj Singh struck on the head of Bina
with farsa. Bhagwan Das and Badhraj struck her with lathies. Maharaj Singh gave
a farsa blow on the head of the informant. Bhagwan Das and Badhraj struck on
the head with lathi on his left arm while accused Halka struck lathi on the
right arm. Jagna struck him on the shoulder and he fell down. Even then accused
persons inflicted lathi blows.
Ramdas also assaulted Brijbhan (PW-10). On hearing his cries for help, several
villagers gathered. They also witnessed the assaults. Deceased breathed his
last instantaneously and the informant became unconscious. Acting on the
information given by the informant first information report was lodged. The
dead body was sent for post-mortem and the injured persons were sent for
body of the deceased 8 injuries were noticed. One of them was the fracture of
the skull. According to the doctor (PW-8) who conducted the post-mortem; the
injuries on the skull were sufficient to cause death in the normal course.
accused persons pleaded innocence and false implication.
of them were also examined and the medical reports indicated that they had
sustained injuries. The Trial Court held that the death was homicidal; but
there was no definite material as to which of the injuries was inflicted by
which accused. Additionally, it was observed that there was fight between the parties
and the accused persons had sustained injuries. In the absence of any
documentary evidence to show as to which injury could be attributed to which
accused, the case was not covered by Section 302 read with Section 34 IPC. But
he held there being several other injuries on the body of the deceased as
noticed, case under Section 323/34 IPC was made out so far as the deceased is
concerned, as well as injuries noticed on PWs. 5, 9 and 10. As there was no
definite material, so far accused Toran is concerned, he was acquitted. As
noted supra, the State of M.P. filed an
appeal before the Madhya Pradesh High Court which came to be disposed of by a
Division Bench of the High Court at Jabalur Bench. The High Court found that
there were several injuries on the person of the deceased. Some were lacerated
wounds and others were bruises. Doctor had opined that the injury on the skull
was vital one. Having noticed this factor, the High Court further observed that
the material evidence which has not come from the doctor, is the result of
cumulative effect of the several injuries that the accused persons stated to
have been caused, and for which death took place.
was also no evidence as to the authorship of fatal injury and, therefore,
Section 302/34 IPC was ruled out.
appeal was dismissed so far as accused Toran is concerned.
counsel for the appellant-State submitted that the approach of the Trial Court
and the High Court is clearly erroneous. The true import of Section 34 of the
Act has been lost sight of. Learned counsel for the respondents accused
submitted that the occurrence was the result of a sudden quarrel and free fight
and, therefore, the judgments of the Courts below do not suffer from any
34 has been enacted on the principle of joint liability in the doing of a
criminal act. The Section is only a rule of evidence and does not create a
substantive offence. The distinctive feature of the Section is the element of
participation in action. The liability of one person for an offence committed
by another in the course of criminal act perpetrated by several persons arises
under Section 34 if such criminal act is done in furtherance of a common
intention of the persons who join in committing the crime. Direct proof of
common intention is seldom available and, therefore, such intention can only be
inferred from the circumstances appearing from the proved facts of the case and
the proved circumstances. In order to bring home the charge of common
intention, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of mind of all the accused
persons to commit the offence for which they are charged with the aid of
Section 34, be it pre-arranged or on the spur of moment; but it must necessarily
be before the commission of the crime. The true contents of the Section is that
if two or more persons intentionally do an act jointly, the position in law is
just the same as if each of them has done it individually by himself. As
observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the
participants in a crime is the essential element for application of this
Section. It is not necessary that the acts of the several persons charged with
commission of an offence jointly must be the same or identically similar. The
acts may be different in character, but must have been actuated by one and the
same common intention in order to attract the provision.
Section does not say "the common intention of all", nor does it say
"and intention common to all".
the provisions of Section 34 the essence of the 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. As a result of the application
of principles enunciated in Section 34, when an accused is convicted under
Section 302 read with Section 34, in law it means that the accused is liable
for the act which caused death of the deceased in the same manner as if it was
done by him alone. The provision is intended to meet a case in which it may be
difficult to distinguish between 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. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is
applicable even if no injury has been caused by the particular accused himself.
applying Section 34 it is not necessary to show some overt act on the part of
being the legal position, the Trial Court and the High Court were not justified
in holding that offence committed was under Section 323 read with Section 34
of learned counsel for the accused as noted above was that the occurrence took
place in the course of a quarrel. The accused persons have not taken any undue
advantage and have also not acted with cruelty and, therefore, in the absence
of any material to show as to who caused the injury, the conviction as recorded
by the Trial Court and confirmed by the High Court should not be varied.
the factual scenario noticed by the Trial Court and the High Court more
particularly the fact that there was fight between accused and the deceased and
the injured witnesses, and the injuries came to be inflicted in course of
sudden quarrel, it would be appropriate to convict the respondents 2 to 10
under Section 304 Part II IPC.
sentence of 8 years would meet the ends of justice.
as accused-respondent Toran is concerned, the Trial Court has rightly observed
that there was practically no material to find him guilty. Though the High
Court has not given any reason for affirming the conclusion of the Trial Court
so far as he is concerned, we find no scope for interference.
substance, the appeal filed by the State is allowed so far as respondents 2 to
10 are concerned and dismissed so far as respondent no.11 Toran Singh is