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CASE NO.: Appeal (crl.)  1310 of 2005

PETITIONER: Jagannath

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 18/09/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1310 OF 2005

S.B. SINHA,  J :

1.      Appellant before us with one Prabhudayal was tried for alleged  commission of an offence under Section 302/34 of the Indian Penal Code.   A 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.

2.      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.

3.      The 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.

4.      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 questioned.

5.      In its judgment, the High Court opined as under:

"From 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

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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).   Accused 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."

6.      Mr. 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.

7.      Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the  State, however, supported the impugned judgment.

8.      A 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.

9.      For 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.   They 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.   

10.     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 was concerned.   

11.     Hukamchand (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.   

12.     It 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.   While embarking upon the question as to whether any intention had been  shared by the appellant with the said Prabhudayal or not, the backdrop in

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which the incident had taken place, in our opinion, should be taken into  consideration.

13.    A 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.

14.     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.   They 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.

15.     In Noor  @ Noordhin v. State of Karnataka [2007 (8) SCALE 665],  this Court held as under:

"13.    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 with others..."

       It was also observed:

"16.    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..."

16.     In Lala Ram v. State of Rajasthan [2007 (8) SCALE 621], this Court  observed:

"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

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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\005

"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."

17.     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 it.

18.     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.

19.     Dr. Srivastava also examined Dhoomsingh and found the following  injuries on his person:

"(1)    A incised would 3 x 1/6" x 1/6" in a carve  size on the back side of the chest. (2)     Incised wound on the wrist of the left hand  1/3" x 1/3" x 1/3". (3)     Contused injury on the wrist of left hand <"  x <".

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       According to Dr. Srivastava, these injuries were simple in nature.

20.     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.

21.     Keeping 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.