V. State of M.P.  Insc 946 (18 September 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 1310 OF 2005 S.B. SINHA, J:
Appellant before us with one Prabhudayal was tried for alleged commission of an
offence under Section 302/34 of the Indian Penal Code.
First Information Report was lodged by one Dhoomsingh (PW-11) at Obeydullaganj
Police Station on 16.09.1986 alleging that he and Ramsingh (since deceased) had
collected pieces of wood from the bank of a river near their house, but the
appellant and Prabhudayal, however, came there and committed theft thereof. An
altercation took place. While the altercation was going on, Prabhudayal
allegedly inflicted one axe blow on the head of the deceased causing an injury
on his person. Two other prosecution witnesses, viz., Naval Singh (PW-2) and Hukumchand
(PW-12) came to the scene of occurrence. They were also allegedly assaulted and
consequently sustained injuries. The deceased while being taken to the police
station breathed his last on the way.
Before the learned Trial Judge, the accused raised a defence that the deceased Ramsingh
and Dhoomsingh (PW-11) accompanied by some other persons came to the house of Prabhudayal
and asked his wife Kasturibai, who examined herself as DW-1, to serve them
chicken and on her refusal to do so, they tried to outrage her modesty;
injuries were caused to her in the process. A criminal case was instituted in
that behalf. The incident is said to have taken place because of the said fact.
learned Trial Judge, however, relying on the testimonies of the aforementioned
witnesses and opining that they are injured witnesses, came to the conclusion
that as the prosecution evidence was corroborated by medical evidence, the
accused must be held to be guilty for the alleged commission of offence under
Section 302 of the Indian Penal Code, and were sentenced to undergo rigorous
imprisonment for life. An appeal preferred thereagainst by the accused has been
dismissed by the High Court by reason of the impugned judgment.
Before embarking upon the questions raised before us, we may, however, notice
that along with the appellant and the said Prabhudayal, one Dhan Singh was also
prosecuted. He, however, was acquitted. The said judgment has not been
its judgment, the High Court opined as under:
the evidence of the three eye witnesses of the prosecution corroborated by the
medical evidence, it is amply proved that accused Prabhudayal caused the death
of Ramsingh by causing injury by the axe on his head. This was a serious
injury. Therefore, accused Prabhudayal must be held to have caused the death of
Ramsingh intentionally. So far as appellant Jagannath is concerned, he has been
convicted by the Trial Court with the aid of Section 34 I.P.C. It is found from
the testimony of Dhoom Singh (P.W. 11), Hukumchand (P.W. 12) and Naval Singh
(P.W.2) that accused Jagannath caused injuries to Dhoom Singh (P.W. 11) and
Naval Singh (P.W. 2).
Jagannath was armed with an axe. He came with accused Prabhudayal. He caused
injuries to Dhoom Singh (P.W.11) and Naval Singh (P.W.2) in furtherance of the
common intention. From these facts it is borne out that he had also formed
common intention with accused Prabhudayal to cause the death of Ramsingh. The
trial court has rightly found appellant Jagannath guilty for the offence
punishable under Section 302/34 I.P.C."
Balraj Dewan, learned counsel appearing on behalf of the appellant contended
that having regard to the prosecution case itself and the evidence brought on
record by the prosecution, the appellant herein cannot be said to have shared
any common intention with Prabhudayal for causing the murder of the deceased Ramsingh.
Vibha Datta Makhija, learned counsel appearing on behalf of the State, however,
supported the impugned judgment.
short question, therefore, which arises for our consideration is as to whether
the appellant is said to have shared any common intention with Prabhudayal in
causing the death of Ramsingh.
the aforementioned purpose, we may accept the statements of the prosecution
witnesses and in particular the evidence of Naval Singh (PW- 2), Dhoomsingh
(PW-11) and Hukumchand (PW-12). As per these witnesses, both the brothers
collected pieces of wood flowing in the river Barkhukhar because of the flood,
which were taken away by all the accused. According to the said witnesses,
therefore, they had committed theft. They wanted to take away the same back
from their possession.
had stopped the accused from taking the same away, whereupon Prabhudayal hit Ramsingh
with an axe blow on his head. Appellant is said to have hit PW-11 on his back.
While the incident was going on, Naval Singh (PW-2) came to the spot. PW-2 was
in his field which was at a distance of about one furlong from the place of
occurrence. According to him, the deceased was being assaulted by all the three
accused with axe and spear which were in their hands. Prabhudayal on his
intervention is said to have caused an injury on the left temple of Naval Singh. It may be noticed that even PW-11 did not attribute any
overt act on the part of the appellant herein so far as the deceased Ramsingh
(PW-12) also categorically stated that the pieces of wood collected by the
deceased and PW-11 were taken away by the accused and they had followed them.
is, therefore, evident that there had been a quarrel. There was no
pre-meditation between Prabhudayal and the appellant herein. Altercations had
taken place. Injury caused upon the deceased by Prabhudayal, therefore, in our
opinion, was an individual act. Similarly, causing of injury upon the
prosecution witnesses by the appellant was his individual act.
embarking upon the question as to whether any intention had been shared by the
appellant with the said Prabhudayal or not, the backdrop in which the incident
had taken place, in our opinion, should be taken into consideration.
common intention may be developed on the spot, but the same must not only be
developed but also must be shared with the other accused.
Concededly, the occurrence took place all of a sudden. The act of theft on the
part of the accused persons was complete. They had been taking away the wood.
They were followed by the deceased and PW-11.
must have been obstructed from taking away the wood by them as the same were in
their possession. It was at that juncture the deceased was said to have been
assaulted by Prabhudayal and Dhan Singh. In a situation of this nature where
the accused persons had acted at the spur of the moment having regard to the
altercations which had preceded the incident, in our opinion, it is difficult
to lead to the conclusion that Prabhudayal and the appellant had developed a
common intention of causing death of the deceased. If the statements of the
prosecution witnesses PWs 2, 11 and 12 are to be believed, they acted almost at
the same time. We may notice that the third accused Dhan Singh has been
acquitted. The State has not preferred any appeal thereagainst. The High Court
has also convicted Prabhudayal under Section 302 of the Indian Penal Code
holding that the same was his individual act. In this situation, we are of the
opinion that it is difficult to uphold the contention of Ms. Makhija that the
appellant is guilty under Section 302/34 of the Indian Penal Code.
Noor @ Noordhin v. State of Karnataka
[2007 (8) SCALE 665], this Court held as under:
A common intention may be developed on the spot. Although a person may not be
held guilty for having a common object, in a given situation, he may be held
guilty for having a common intention, but such common intention must be shared
We have noticed hereinbefore that all the accused, other than the appellant,
have been acquitted by the learned Trial Judge. The State did not prefer any
appeal thereagainst. The prosecution, therefore, cannot say that the appellant
had any common intention with any other accused persons who were named in the
First Information Report. The matter might be different where a person is said
to have formed common intention with other persons. The prosecution may succeed
in obtaining a conviction against the appellant for commission of an offence
under Section 34 of the Indian Penal Code if the names of the other accused
persons and the roles played by them are known. Specific overt act of the
accused is not only known but is proved. In this case the first information
report was against known persons..."
Lala Ram v. State of Rajasthan [2007 (8) SCALE 621], this Court
Section 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.
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 "10. The 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."
Dr. J.P. Nayak (PW-5) examined Hukamchand and found abrasion on his body and a
contusion 2 x <" in the left side of chest and just above the left
nipple and along with a contusion 2 x =" was also found. One abrasion 1
<" was found in the middle part of the chest and blood was clotted on
Dr. V.K. Srivastava (PW-8) examined Naval Singh and found lke a half moon size
wound =" x =" on his body on the left side of his head which was deep
to the above of the bone. According to Dr. Srivastava, this injury was caused
by a hard and blunt weapon.
Dr. Srivastava also examined Dhoomsingh and found the following injuries on his
A incised would 3 x 1/6" x 1/6" in a carve size on the back side of
Incised wound on the wrist of the left hand 1/3" x 1/3" x 1/3".
Contused injury on the wrist of left hand <" x <".
to Dr. Srivastava, these injuries were simple in nature.
Injuries caused to Naval Singh and Hukamchand were also simple in nature. In
view of the nature of injuries caused by the appellant, he cannot be held to be
guilty of commission of an offence under Section 302/34 of the Indian Penal
Code. We, therefore, are of the considered view that the appellant is guilty of
commission of an offence under Section 326 of the Indian Penal Code and not
under Section 302/34 thereof.
in view of the facts and circumstances of this case, we are of the opinion that
imposition of a sentence of 10 years Rigorous Imprisonment under the
aforementioned provision shall meet the ends of justice. The Appeal is allowed
in part and to the extent mentioned hereinbefore.