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 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  238 OF 2011

CHHOTA AHIRWAR                            …..Appellant

versus  

THE STATE OF MADHYA PRADESH                  ….Respondent

J U D G M E N T

Indira Banerjee, J.

This  appeal  is  against  a  judgment  and  order  dated  5th

November, 2008 passed by the High Court of Madhya Pradesh at

Jabalpur, dismissing Criminal Appeal No.1050 of 1994 filed by the

appellant,  and  upholding  the  judgment  dated  26th August,  1994

passed by the  Additional Sessions Judge, District Panna, Madhya

Pradesh in  Sessions Case No.  13/1993,  inter  alia,  convicting the

accused appellant of offence under Section 307 read with Section

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34 of the Indian Penal Code.   

2. The accused appellant was tried by the Sessions Court,  on

charges  under  Section  307/34  of  the  Indian  Penal  Code,  for

attempt, with common intent along with the main accused Khilai, to

murder the complainant and for instigating the said accused Khilai

to fire at the complainant with a country made pistol, in furtherance

of a common intent to kill the complainant.   

3. In  a  nutshell,  the  case  of  the  Prosecution  is  that,  on  22nd

October, 1992 at about 11.00 a.m., there was a quarrel between

the  accused  appellant  and  the  complainant,  in  which  the  said

accused Khilai intervened.  The said accused Khilai who had joined

the  accused  appellant  and  the  complainant,  took  out  a  country

made pistol from the pocket of his trousers, pointed it towards the

complainant and fired at the instigation of the accused appellant,

who  urged  the  said  accused  Khilai  to  kill  the  complainant.  The

complainant, therefore, sustained injuries on his forehead near his

eye and on his lips and shoulder with splinters from the pistol and

started bleeding. It is the further case of the Prosecution, that after

the firing, the accused Khilai fled the scene of occurrence and the

accused  appellant  followed  him.  Immediately  thereafter,  the

complainant reported the incident at the Mohandra Chowki.  The

report was forwarded to the Simariya Police station where Crime

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No.110/1992 was registered.

4. After  investigation,  Chargesheet  was  filed  against  the

accused  appellant  and  the  main  accused  Khilai,  both  of  whom

pleaded  ‘Not  Guilty”  and  claimed  to  be  tried.  To  establish  the

charges framed against the accused, the Prosecution examined 11

witnesses. The accused appellant did not examine any witness nor

did the main accused, Khilai.  

5. By  a  judgment  dated  26th August,  1994,  the  Additional

Sessions Judge, Panna held the accused appellant guilty of offence

under  Section  307/34  of  the  Indian  Penal  Code  and  the  main

accused Khilai  guilty  of  offence under Section  307 of  the Indian

Penal Code.  By an order of sentence passed on the same day the

accused  appellant  was  sentenced  to  undergo  rigorous

imprisonment for five years in addition to fine of Rs.1000/-.   

6. Being aggrieved by the aforesaid judgment of conviction and

order  of  sentence,  the  accused  appellant  appealed  to  the  High

Court.  The said appeal being Criminal Appeal No. 1050 of 1994 has

been  dismissed  by  the  judgment  and  order  impugned  in  this

appeal.

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7. The  accused  appellant,  the  main  accused,  Khilai,  and  the

complainant  were  all  related.   Sunder  Lal,  father  of  the  main

accused Khilai and uncle of the complainant, had given his share of

land  to  the  accused  appellant  for  cultivation.   There  were  land

disputes between members of the family and in particular between

the complainant and the accused appellant.

8. Of the eleven witnesses examined by the Prosecution,  the

first  Prosecution  Witnesses  (PW-1)  only  gave  evidence  of

preparation of  a sketch map at the place of  occurrence and the

second Prosecution Witness (PW-2) testified to the receipt of case

records in the office of the District Magistrate. The Sixth Prosecution

Witness (PW-6) only witnessed the preparation of the site map of

the  place  of  occurrence,  recovery  of  an  iron  splinter  and  some

blood stained clothes and articles. Three witnesses, that is, the 5 th,

9th and 10th witnesses (PW-5, PW-9, PW-10) did not support the case

made out by the Prosecution and were declared hostile. The ninth

and tenth Prosecution Witnesses who were produced to testify to

the confession allegedly made by the main accused Khilai in their

presence, leading to recovery of the weapon, categorically denied

their  presence  at  the  time  of  recovery  of  the  pistol  and  were

declared hostile.  They also denied that the main accused Khilai had

made any confession.  The 11th Prosecution Witness (PW-11) only

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testified to the arrest of the accused appellant.  The evidence of

these  witnesses  is  of  no  relevance  to  the  guilt  of  the  accused

appellant.   

9. The 8th Prosecution Witness (PW-8) who had been working as

Assistant  Surgeon  at  the  Primary  Health  Centre,  Mohandra

described the wounds found on the body of the complainant and

opined that the injuries were caused by splinters from a firearm.  In

cross examination he said that no splinters were found from the

injury during examination.  The evidence of this witness suggests

that the injuries could have been caused by firing a pistol. He ruled

out  the  possibility  of  the  injury  having  been  caused  as  a

consequence of explosion of stone. At the highest, the evidence of

PW-8 establishes that a pistol was fired, as a result of which the

complainant sustained injuries.  The possibility of the injuries being

sustained  while  cleaning  the  pistol  was  not  ruled  out  by  this

witness.  This witness has also not said anything relevant to the

guilt of the accused appellant.  

10. The  7th Prosecution  Witness  (PW-7)  was  the  Investigating

Officer, who deposed that he had sent the report of the incident to

the  Simaria  Police  Station  on  the  basis  of  which  criminal  case

No.110/1992 under Section 307/34 of the Indian Penal Code had

been registered and had examined the complainant, Prem Shankar

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Kateha (PW-4), Sabbu Chourasia and Bharat and had seized blood

stained clothes, articles etc. from the place of occurrence.

11. There is nothing in the evidence of PW-1, PW-2, PW-5, PW-6,

PW-7, PW-8, PW-9, PW-10 and PW-11 to establish the guilt of the

accused appellant. The complainant, a cousin of the main accused

Khilai,  and  an  injured  witness  deposed  as  the  3rd Prosecution

Witness (PW-3).  PW-3 stated that on 22nd October, 1992, at about

11.00 O’Clock, when he was going to Khareja from his house, the

accused appellant  stopped him on the way and told him not  to

cultivate  his  land.  The  main  accused  Khilai  also  came  and

intervened,  whereupon  the  complainant  told  the  main  accused

Khilai,  not  to  interfere  and  to  go  home,  as  he  was  in  no  way

concerned with the dispute between the complainant (PW-3) and

the accused appellant.

12. The  complainant  (PW-3)  deposed that  on  being  told  to  go

home,  the  main  accused  Khilai  took  out  a  pistol  from the  right

pocket of his pants and pointed it at him.  The complainant (PW-3)

told  the  main  accused  Khilai  not  to  open  fire,  whereupon  the

accused  appellant  urged  the  main  accused  Khilai  to  kill  the

complainant (PW-3).   Thereafter, the main accused, Khilai fired the

pistol,  causing  injury  to  the  complainant  with  the  splinters.  The

complainant (PW-3) further stated that  the incident took place in

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the presence of Prem Shankar Kateha who desposed as the fourth

witness for the Prosecution (PW-4) who was there at the place of

occurrence and also in the presence of Sabbu Chourasia who had

been  selling  oil  and  Bharat  Kateha  who  had  been  helping  in

arranging the cans of oil.    

13. According  to  the  complainant  (PW-3),  the  aforesaid  three

persons, Prem Shankar Kateha (PW-4), Sabbu Chourasia and Bharat

Kateha challenged the main accused Khilai, whereupon Khilai fled

towards  the  bus  stand  and  the  accused  appellant  followed  him

running.

14. From the evidence of  the complainant  (PW-3),  it  transpires

that when heated arguments were going on and the complainant

(PW-3) urged the main accused not to interfere as he was in no way

concerned,   the  main  accused  Khilai  took  out  a  pistol  from the

pocket of his trousers and pointed it towards the complainant (PW-

3).  When the complainant (PW-3) told the main accused Khilai not

to fire, the accused appellant exhorted the accused Khilai to kill the

complainant.  The complainant (PW-3) said that the main accused

Khilai, thereafter, fired at him.

15. The  evidence  of  the  complainant  (PW-3)  indicates  the

existence  of  serious  disputes  between  the  appellant  and  the

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accused,  and/or  the  immediate  members  of  their  respective

families.  In his cross-examination the complainant (PW-3) admitted

that  one  year  before  the  incident  his  uncle  Sunder  Lal,  that  is,

father of the main accused Khilai, had filed an application against

the complainant (PW-3) and his father Asha Ram at Tehsil office,

Pawai  regarding  the  land  in  dispute.  The  complainant  (PW-3)

deposed that at the time of the incident his uncle Sunder Lal had

given his share to the accused appellant on ‘Batai’ for cultivation.

He stated that the share of his uncle Sunder Lal, which was given to

the accused appellant on ‘Batai’, was adjacent to his share of land.

The complainant (PW-3) also admitted in cross-examination that on

the basis  of  a  report  filed by  the  main  accused,  Khilai,  and  his

father  Sunder  Lal,  a  case  has  been  registered  under  the

complainant (PW-3) and his younger brother Buttu in the court of

Judicial Magistrate, Pawai under Sections 379 and 447 of the Indian

Penal  Code.  The  case  was  filed  before  the  incident.  The

complainant  (PW-3)  also  admitted  that  there  were  several  other

cases  between  the  complainant  (PW-3)  and/or  members  of  his

immediate  and  the  accused  appellant  as  also  members  of  the

accused appellant’s family which were still pending at the time of

the incident.

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16.  It is not in dispute that the accused appellant neither carried

arms nor opened fire.   The accused appellant is alleged to have

instigated the opening of fire. In cross-examination the complainant

(PW-3)  admitted that  he  had not  in  his  statement  to  the  police

under  Section  161  of  the  Cr.PC  stated  anything  about  any

instigation by the accused appellant to the main accused Khilai.

17. The Sessions Court  has apparently  proceeded on the basis

that  PW-4,  eye  witness  to  the  incident  had  corroborated  the

evidence of the complainant (PW-3).   The Sessions Court however

overlooked certain serious discrepancies between the evidence of

PW-4 and the evidence of the complainant (PW-3) with regard to

the alleged role of the accused appellant.  While the complainant

(PW-3), himself the injured witness, has deposed that the accused

appellant exhorted the main accused Khilai  to kill  him, after the

main accused Khilai had pointed the pistol at the complainant (PW-

3), PW-4 had deposed that on being told by the accused appellant

to beat the complainant (PW-3), the main accused Khilai took out

the pistol from the right pocket of his pant and fired.    

18. From the evidence of PW-4 it also transpires that the accused-

appellant and the complainant (PW-3) were quarrelling over a land

related dispute. The accused appellant asked the complainant (PW-

3) not to go to the field, whereupon the complainant retorted that

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the land belonged to his grandparents, and that no one could stop

him  from  going  there.  The  heated  quarrel,  with  raised  voices,

attracted attention and about  50/60 villagers gathered at the place

of occurrence.  The main accused, Khilai, who was cycling by the

place of occurrence, stopped and asked the complainant, PW-3 why

he was going to the field whereupon the accused appellant told the

main accused Khilai that the complainant would not easily give up

and urged the main accused to beat him.  At this point, the main

accused Khilai took out the pistol from his pocket.

19. PW-5, who was declared hostile has confirmed that there was

an altercation between the complainant and the accused appellant.

According  to  this  appellant,  the  main  accused  Khilai  came  and

intervened.   The  main  accused  Khilai  hurled  abuses  at  the

complainant, took out his pistol from his pocket and threatened to

kill  the complainant if he went to the field.  Thereafter the main

accused went to the back of the house, after which the sound of

firing  was  heard.   PW-5  did  not  say  that  the  accused  appellant

instigated the main accused Khilai to shoot.  

20. It is not in dispute that the accused appellant did not open

fire.   The Prosecution has alleged that  it  was the main accused

Khilai  who had fired from his pistol and injured the complainant.

The question is whether, having regard to the facts established by

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the  Prosecution,  the  appellant  could  have  been  held  guilty  of

offence under Section 307 by invocation of Section 34 of the Indian

Penal Code.

21. It is a settled principle of criminal law that only the person

who actually commits the offence can be held guilty and sentenced

in accordance with law.  However, Section 34 lays down a principle

of joint liability in a criminal act, the essence of which is to be found

in the existence of common intention, instigating the main accused

to do the criminal act, in furtherance of such intention. Even when

separate acts are done by two or more persons in furtherance of a

common intention, each person is liable for the result of all the acts

as if all the acts had  been done by all of these persons.   

22. Section  34  is  only  a  rule  of  evidence  which  attracts  the

principle of joint criminal liability and does not create any distinct,

substantive offence as held by this Court in  B.N. Srikantiah vs.

Siddiah reported in  AIR 1958 SC 672;  Bharwad Mepa Dana

and Anr. Vs. State of Bombay reported in AIR 1960 SC 289 and

other similar cases.  To quote Arijit Pasayat, J.  in  Harbans Kaur

and Another vs. State of Haryana  reported in  (2005) 9 SCC

195;  the  distinctive  feature  of  Section  34  is  the  element  of

participation in action.  

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23. Common intention can only be inferred from proved facts and

circumstances  as  held  by  this  Court  in Manik Das & Ors.  vs.

State of Assam reported in  AIR 2007 SC 2274.  Of course, as

held in Abdul Mannan vs. State of Assam reported in (2010) 3

SCC 381, the common intention can develop during the course of

an occurrence.   

24. Section 34 is only attracted when a specific criminal act is

done by several persons in furtherance of the common intention of

all, in which case all the offenders are liable for that criminal act in

the same manner as the principal offender as if the act were done

by all the offenders.  This Section does not whittle down the liability

of  the  principal  offender  committing  the  principal  act  but

additionally  makes  all  other  offenders  liable.   The  essence  of

liability under Section 34 is simultaneous consensus of the minds of

persons participating in the criminal act to bring about a particular

result, which consensus can even be developed at the spot as held

in Lallan Rai & Ors. vs. State of Bihar reported in  (2003) 1 SCC

268.  There must be a common intention to commit the particular

offence.  To constitute common intention, it is absolutely necessary

that the intention of each one of the accused should be known to

the rest of the accused.

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25. Mere  participation  in  crime with  others  is  not  sufficient  to

attribute common intention. The question is whether, having regard

to the facts and circumstances of this case, it can be held that the

Prosecution  established  that  there  was  a  common  intention

between the accused appellant and the main accused Khilai to kill

the complainant.   In  other  words,  the Prosecution  is  required to

prove a premeditated intention of both the accused appellant and

the main accused Khilai, to kill the complainant, of which both the

accused  appellant  and  the  main  accused  Khilai  were  aware.

Section 34  of the Indian Penal Code, is really intended to meet a

case  in  which  it  is  difficult  to  distinguish  between  the  acts  of

individual  members of  a party  and prove exactly  what part  was

played by each of them.

26. To attract Section 34 of the Indian Penal Code, no overt act is

needed on the part of the accused if they share common intention

with others in respect of the ultimate criminal act, which may be

done by any one of the accused sharing such intention [see  Ashok

Basho (2010) SCC 660 (669)]. To quote from the judgment of the

Privy  Council  in  the  famous  case  of  Barendra  Kumar  Ghosh

reported in AIR 1925 Privy Council 1, “they also serve who stand

and wait”.

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27. Common intention implies acting in concert.  Existence of a

prearranged plan has to be proved either from the conduct of the

accused, or from circumstances or from any incriminating facts.  It

is not enough to have the same intention independently of each

other.   

28. The  question  in  this  case  is,  whether  the  Prosecution  has

been able to establish a pre-arranged common intention between

the  accused  appellant  and  the  main  accused  Khilai  to  kill  the

complainant in pursuance of which the accused Khilai  open fired

from his pistol.  The answer to the aforesaid question has to be in

the negative for the following reasons:

(i) A quarrel broke out between the accused appellant and the

complainant.  When  the  accused  appellant  tried  to  prevent  the

complainant from going to the field, the complainant insisted on

doing so. While the quarrel was going on, the main accused Khilai

arrived at the spot and intervened whereupon the complainant told

him off, saying he should go home as he was in no way concerned

with the dispute.  At this, the main accused Khilai brought out a

pistol from his right pant pocket and aimed it at the complainant.   

(ii) There  is  no  evidence  to  establish  any  pre-arrangement  to

converge at the place of occurrence. The circumstances established

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suggest  that  intervention  by  the  main  accused  Khilai  was  by

chance.   The  main  accused  Khilai  chanced  to  stop  as  he  was

passing by the place of occurrence when the accused appellant and

the complainant were quarrelling.

(iii) As  per  the  evidence  of  the  complainant,  who  is  a  injured

witness, when the complainant told the main accused Khilai not to

intervene and to go home,  Khilai reacted by taking out the pistol

from his right pant pocket and pointing it at the complainant. The

pistol was taken out by the main accused and pointed at Khilai,

without any instigation from the accused appellant.  

(iv) Even if it is accepted that the accused appellant uttered the

words attributed to him by the complainant (PW-3) in his evidence,

this seems to have been done on the spur of the moment.  Pre-

arrangement is not established.

(v) As  observed  above,  there  are  some  notable  discrepancies

between the evidence of the complainant (PW-3) and PW-4 which

raise serious doubts with regard to the truth and/or  accuracy of

their evidence particularly in view of the enmity and pre-existing

family disputes between the parties.

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(vi) Even  though  PW-5  may  have  been  declared  hostile,  his

evidence is not to be rejected with in its entirely.  This witness also

confirmed  that  there  was  an  altercation  between  the  accused

appellant and the complainant, in which the main accused Khilai

intervened,  took out  his  pistol  and aimed it  at  the complainant.

These facts are corroborated by PW-3 (the Complainant) and PW-4.

This witness however stated that the main accused Khilai took out

his pistol and threatened to kill  the complainant. He did not say

that the accused appellant urged the main accused, Khilai to shoot.

29. Even  though  there  may  be  some  evidence  that  the  main

accused  took  out  a  pistol  and  opened  fire,  the  Prosecution  has

miserably  failed  to  establish  any  common,  premeditated  or

prearranged intention jointly of the accused appellant and the main

accused Khilai  to kill  the complainant,  on the spot or otherwise.

The Prosecution has also failed to prove that the pistol was fired at

the exhortation of the accused appellant.  In our considered view,

the  Sessions  Court  and  the  High  Court  both  fell  in  error  in

convicting the accused appellant.    

30. For the reasons discussed above, the appeal is allowed.  The

judgment and order of the High Court under appeal, confirming the

judgment and order of the conviction of the Sessions Court as also

the judgment  and order  of  the  Sessions Court  are set  aside,  as

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against the accused appellant. The accused appellant is acquitted

and directed to be set free forthwith.   It  is  made clear that this

Court has not considered the merits of the conviction of the main

accused Khilai and the appeal,  if  any, filed by the main accused

Khilai shall be decided on its own merits.

...................................J   (INDIRA BANERJEE)

...................................J     (S. RAVINDRA BHAT)    

FEBRUARY 06, 2020 NEW DELHI