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CASE NO.: Appeal (crl.)  1055 of 1997

PETITIONER: State of M.P.                                            

RESPONDENT: Deshraj & Ors.                                           

DATE OF JUDGMENT: 29/01/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: JUDGMENT

ARIJIT PASAYAT,J.

       In 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.  It appears respondent no.1-Darua had died on 15.6.1986, and   that being so, the appeal stands abated so far he is  concerned.

       Background facts as projected by the prosecution are as  follows:

       On 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

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fell down. Even then accused persons inflicted lathi blows.  Accused 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 medical examination.   On the 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.  The accused persons pleaded innocence and false implication.  Some 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.   There was also no evidence as to the authorship of fatal  injury and, therefore, Section 302/34 IPC was ruled out.

       The appeal was dismissed so far as accused Toran is  concerned.

       Learned 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 infirmity.

  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

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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.

       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.

       Above 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 IPC.          Stand 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.

       Applying 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.  Custodial sentence of 8 years would meet the ends of  justice.  

So far 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

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not given any reason for affirming the conclusion of the  Trial Court so far as he is concerned, we find no scope for  interference.           In 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 concerned.