REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   243       OF 2009 (Arising out of SLP (Crl.) No. 4634 of 2007

Komal ..Appellant

Versus

State of M.P. ..Respondents

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  at  Jabalpur allowing the appeal filed by the

State of M.P. upholding the appellant guilty for offence punishable under

Section 304 Part I read with Section 34 of the Indian Penal Code, 1860 (in

short the ‘IPC’) and sentencing him to undergo imprisonment for 7 years.

However, his acquittal for offences punishable under Sections 147, 148, 302

read with Section 149 IPC was upheld.  Eight persons faced trial for alleged

commission of offences. Gubdu and Ishwar A-1 and A-2 respectively were

charged for commission of offences punishable  under Sections 147, 148,

323,  149 and 302 IPC. Rest  of  the accused persons  were charged  under

Sections 147, 148, 323 read with Section 149 and 302 read with Section 149

IPC.  The trial Court recorded conviction and imposed sentences as follows:

A-2  Ishwar  was  convicted  under  Section  302  and  sentenced  to

undergo imprisonment for life and also to pay fine of Rs.500/- and in default

to further undergo simple imprisonment for one month.  A-4 Komal was

found  guilty  of  the  offence  punishable  under  Section  323  IPC  and  was

sentenced  to  pay  fine  of  Rs.500/-  and  in  default  to  undergo  simple

imprisonment for one month but was acquitted of the other offences and  the

other six accused (A-1, A-3, A-5 to A-8) were acquitted of all the charges.  

Accused Ishwar preferred Criminal Appeal No.978 of 1992 while the

State of M.P. filed Criminal Appeal No.245 of 1993 against the acquittal of

seven accused persons.  

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3. Prosecution version in nutshell is as follows:

All the accused are residents of village Doomar, where complainant

Shrilal  (PW7) father  of  Daulat  (hereinafter  referred to  as  the ‘deceased’)

also  resided.  He  is  a  barber  by  profession.  Although,  he  is  generally

engaged  for  the  work  of  hair  cutting,  shaving  etc.,  yet  he  also  renders

services  as  an  assistant  in  marriages  solemnized  in  accordance  with

traditional Hindu order. However, in view of dispute with Al, A3 & A4 as

to  payment  of  money  for  the  services  rendered,  the  complainant  at  the

relevant point of time, was not serving as barber to these accused. In turn,

they also called another barber namely Ishwar Das, the A2, from another

village Purena.

On the  auspicious  occasion  of  “Akshay  Tritiya”  that  fell  on  19th

April,  1988,  a  number  of  marriages  were  proposed  to  be  solemnized  in

village-Doomar.  Shrilal  (PW7)  was  working  in  the  Pangat  (community

feast)  at  the  residence  of  one  Komal  Kachhi.  He  had  deputed  his  son

deceased Daulat to render service in the marriage ceremony organized at the

residence of one Balram Ahir.  At about 3:00 p.m., when the guests were

taking meals at the residence of Bairam, Al called Daulat through Narayan

Singh to a place near Mata ki Madiya (place of worship of the Goddess). Al

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and  A2  gave  Kharerua  (piece  of  wood  used  in  bullock  cart)  blows  on

Daulat’s  head. He fell  down and was rendered unconscious.  His younger

brother Harlal (PW8) immediately went to the house of Komal Kachhi and

informed his  father  Shrilal  (PW7) about  the  incident.   Shri  and his  wife

Phoolabai rushed to the spot,  where he was also assaulted by Al and A2

with  Kharerua.  A3 & A4 wielded  lathies  on  his  wife  Phoolabai  and  his

younger son Harlal was also struck with lathies by A5 and A8.

Parents and brothers of unconscious Daulat immediately took him to

the police station, where Shrilal lodged the first information report (Ex-P/7)

Thereupon, a case under Sections 294 341 & 323 read with Section 34 IPC

was registered.   Daulat  and other  injured  namely,  Shrilal,  Phoolabai  and

Harlal were sent to the PHC Bankhedi for medical examination. Dr. R.C.

Agrawal  (PWI5),  after  examining  Daulat,  referred  him  to  the  District

hospital,  Hoshangabad  for  admission  and  treatment  and  also  advised

radiological examination of the injury found on the scalp. Pursuant to his

advice, Daulat was taken to the District Hospital at Hoshangabad where he

succumbed to the injuries on 20.4.1988.  

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After inquest proceeding, the dead body of Daulat was sent for post

mortem that was conducted by Dr. Ashok Kumar Tiwari (PW14).   During

investigation,  the  accused  were  arrested  and  at  their  instance  respective

weapons were recovered. One white shirt worn by the deceased at the time

of incident was also recovered and seized. All these articles were sent to the

FSL, Sager, along with the ordinary and blood stained soil seized from the

spot for chemical examination. Observing bloodstains on all these articles

excepting the ordinary earth seized from the spot, the Chemical Examiner

forwarded the exhibits to Serologist for further examination. However, the

Serologist could only determine presence of human blood on the shirt and

the blood stained earth seized from the spot.

The trial  Court  as  noted  above convicted  A-2 Ishwar  and A-4 the

present appellant for offence punishable under Sections 302 and 323 IPC

respectively for their individual acts and sentenced them as indicated above.

No appeal  was filed by A-4 Komal against  his conviction.   Appeal  was

filed by State before High Court. According to the stand of State before the

High Court, the true parameters of Section 149 IPC were not kept in view.

The High Court accepted the stand and directed conviction as noted above.   

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4. In support of the appeal, learned counsel for the appellant submitted

that the High Court having noted at one place that there was no common

object, the question of convicting the present appellant for offence relatable

to section 304 Part I read with Section 34 IPC does not arise. With reference

to para 30 of the judgment it is submitted that there is lack of clarity as to

what the High Court wanted to observe. The High Court has observed that

there  was  common  object  and  the  appellant  was  not  a  member  of  the

unlawful  assembly.  It  has been held by the High Court  that  the present

appellant was also convicted for causing injury on the person of Daulat and

he has not challenged his conviction.  It was pointed out that the trial Court

formulated the question as to whether the accused persons in furtherance of

their  common  intention  caused  injuries  on  the  complainants  Shrilal,

Phoolabai and Harlal intentionally.  There was no evidence that the present

appellant caused any injury on the person of Daulat  It was pointed out that

the evidence of Shrilal (PW-7) and  his son Jagdish (PW-9) was held to be

not acceptable.   

5. Learned counsel for the respondent-State on the other hand supported

the judgment.  

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6. We find that the High Court has erroneously come to the conclusion

about the role of appellant. It was erroneously held that the appellant had

caused injury on the person of Daulat. It was nobody’s case.  

7. Section 34 has been enacted on the principle of joint liability in the

commission 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.  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

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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  commission  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

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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. It has been categorically held by both the trial  Court and the High

Court  that  there  was  no  common  object  and  in  any  event  the  present

appellant was not a member of any unlawful assembly. Having held so, the

High Court ought not to have altered the conviction as recorded by the trial

Court. Accordingly, the appeal is allowed. The order of the trial Court vis-à-

vis the present appellant is restored and that of the High Court vis-à-vis the

present appellant stands quashed. If the appellant has served the sentence as

imposed by the trial Court, the bail bonds executed for giving effect to order

dated  8.1.2008  shall  stand  discharged.  Otherwise,  the  appellant  shall

surrender forthwith to serve the remainder of sentence.      

..……..……….......................J. (Dr. ARIJIT PASAYAT)

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

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New Delhi, February 09, 2009         

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