REPORTABLE

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 M.P. ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge 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.

3. Prosecution 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

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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.   

4. Learned 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

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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.   

5. Learned counsel for the appellant re-iterated the stand taken before

the High Court and submitted that Section 34 IPC has no application.

6. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment.  

7. 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

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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.

8. 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

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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.

9. The 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.  

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10. In 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.    

11. The appeal is allowed.  

………………………………J. (Dr. ARIJIT PASAYAT)

…………………..…………..J. (ASOK KUMAR GANGULY)

New Delhi, January 20, 2009   

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