Daya Shankar Vs.
State of M.P.  INSC 99 (20 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of SLP (Crl.) No. 5953 of 2006) Daya Shankar ..Appellant Versus State of
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Madhya Pradesh
High Court upholding the conviction of the appellant for offence punishable
under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
the `IPC') as was awarded by learned Additional Sessions Judge, Panna, in
Sessions Trial No.15/1992.
version as unfolded during trial is as follows:
On 30th November,
1991 at about 5.00 p.m. Ram Kishore (hereinafter referred to as the `deceased')
was murdered in an agricultural field. First Information Report was lodged by
Manik Lal at Police Station, Pawal in the evening at about 7.00 p.m. Offence
was registered as Crime No.124/91 under Section 302/34 IPC. Deceased had eloped
with Lalli, sister of Ramcharan (A-2) and both of them had performed court
marriage. The court marriage was registered and Lalli was living with
Ramkishore. The appellant was having enmity with deceased on account of
aforesaid incident. Deceased after eloping with Lalli was living in some other village
and returned to his village a month before the incident. Ramkishore had gone to
answer the call of nature in the evening on 30.11.1991 at about 4.30 p.m.
towards the agricultural field of Gadka. Around 5 p.m. Phulla (A-3) armed with
axe, Ramcharan (A-2) armed with sword alongwith Dayashankar (A-1) and Munni Lal
(A-4) went to the field of Gadaka. Munni Lal and Dayashankar were barehanded.
Phulla gave axe blow on the head of deceased. Thereafter, Dayashankar and
Munnilal, the co-accused pulled the legs of deceased and threw him on the ground.
Ram Kishore fell on the crops in the field. Ramcharan assaulted the deceased by
sword on the chest.
Then he placed his
sword on the chest of the deceased. On account of beating he died. Police after
receiving information of the commission of crime carried out the investigation,
arrested the accused persons and filed the challan on 3.1.1992 before the Court
of Judicial Magistrate. Case was committed to the Court of Sessions Judge.
Trial Court framed charges under Section 302/34 IPC against the accused
persons. After recording the evidence the trial Court convicted the accused
persons for offence under Sections 302 read with Section 34 IPC and sentenced
them as afore-noted.
Before the High Court
the basic stand was that the prosecution failed to prove common intention on
the part of the appellants and, therefore, Section 34 had no application. The
individual act of the appellant should have been considered. Merely because the
appellant had accompanied other accused persons, that cannot be sufficient to
warrant presumption of common intention.
counsel for the State submitted that the eye witnesses PWs 2 and 3 had
described the act of each of the appellants and the role ascribed to the
appellant was that he pulled the leg of the deceased as a result of which deceased
fell in the field of Masur crop and thereafter he was assaulted by other
accused persons. The appeal was dismissed accepting the stand of the State.
counsel for the appellant re-iterated the stand taken before the High Court and
submitted that Section 34 IPC has no application.
counsel for the State on the other hand supported the judgment.
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 are 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". Under 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. For applying Section 34 it is not necessary to show
some overt act on the part of the accused.
evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The
mere fact that he was in the company of the accused who were armed would not be
sufficient to attract Section 34 IPC. It is undisputed that appellant was not
armed and he had no animosity with the deceased. This position is also accepted
by the prosecution. Additionally, the stand that he pulled the leg of the
deceased has not been established.
the peculiar facts of the case therefore it would be appropriate that the
appellant cannot be held guilty by application of Section 34 IPC. His
conviction is accordingly set aside. He be set at liberty forthwith unless
required to be in custody in connection with any case.
appeal is allowed.
(Dr. ARIJIT PASAYAT)