NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1339 OF 2010

Virender     .....Appellant

Versus

State of Haryana                           .....Respondent

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

This  appeal  is  presented  questioning  the  judgment

dated 28.07.2009 passed by the High Court of Punjab and

Haryana  at  Chandigarh  in  Criminal  Appeal  No.  168-DB  of

2001,  confirming  the  judgment  of  the  Sessions  Court,

Narnaul dated 16.02.2001 passed in Sessions Case No. 5 of

2000, convicting the appellant/accused along with two other

accused for the offence under Section 302 read with Section

34 of the Indian Penal Code (hereinafter “IPC”).  

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2. The  case  of  the  prosecution  in  brief  is  that  on  the

intervening night between 6/7.11.1999, the first informant,

Suresh  Kumar,  and  his  brother  Krishan  Kumar  (the

deceased), had gone to their field, which they had taken on

Batai,  for  irrigation  purposes;  at  about  1:30/2:00  AM  on

07.11.1999, the informant sent Krishan Kumar to verify the

water flow in the channel which passed through the ‘Dol’ of

the field of Accused No.3 Hawa Singh; when Krishan Kumar

was  near  his  tubewell  (situated  near  the  middle  of  Hawa

Singh’s field), the first informant heard noises of abuses, and

on reaching the said place he saw Hawa Singh armed with a

kulhari (axe),  Accused  No.1  Satpal  armed  with  a  dantali

(sickle),  and Accused No.2  Virender,  the  appellant  herein,

armed with a  lathi; and Hawa Singh raised a cry exhorting

that  the  deceased  should  be  taught  a  lesson.  Thereafter,

Hawa Singh gave an axe blow to the deceased on the right

shoulder, Satpal aimed two sickle blows on the head of the

deceased  which,  however,  fell  on  his  left  arm,  and  the

appellant gave a lathi blow on the left knee of the deceased,

who fell  to the ground. At that point of time, Hawa Singh

gave the  deceased an axe blow on  his  chest,  and Satpal

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gave  him  a  sickle  blow  on  the  left  knee.  When  the  first

informant  raised  a  hue  and  cry,  the  uncle  of  the  first

informant,  Jugal  Kishore,  came  to  the  spot,  and  also

witnessed  the  incident.  Thereafter,  the  accused  ran  away

from the scene. The first information report was lodged on

the morning of 07.11.1999. As mentioned supra,  both the

Courts  convicted  all  the  three  accused  for  the  offence

punishable under Section 302 read with Section 34 of the

IPC.

3. The other two accused, namely Hawa Singh and Satpal,

seem to have not filed appeals against the same, accepting

the judgment passed by the High Court. It is brought to our

notice  that  those  accused  have  already  undergone  their

sentence, and have been released from custody.  

The appellant herein was released on bail by this Court

on 26.07.2010.

4. Heard Mr. Naresh Kaushik,  learned counsel appearing

on  behalf  of  the  appellant,  and  Mr.  Anish  Kumar  Gupta,

learned  Additional  Advocate  General  appearing  for  the

respondent-State.  

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5. The  case  of  the  prosecution  mainly  rests  on  the

evidence of PWs 14 and 15, who were the eye-witnesses of

the incident. PW-14, the first informant, is the brother of the

deceased, and PW-15 is their uncle, who had arrived at the

scene after hearing the cries of the first informant.

6. The  appellant  herein  was  convicted  for  the  offence

punishable under Section 302, IPC with the aid of Section 34,

IPC,  inasmuch  as  both  the  Courts  concluded  that  the

appellant had shared the common intention to murder the

deceased with the other two accused.  

7. It has been shown that Accused No.3, Hawa Singh had a

motive to commit the murder of the deceased, inasmuch as

he was eyeing the property which was being cultivated by

the deceased on a Batai basis, and though Hawa Singh had

requested the landlord to give the land on Batai basis to him,

the deceased had secured the land instead. It  was in this

context that the murder was committed through the overt

acts of the two accused other than the appellant. The moot

question,  however,  is  whether  the  appellant  herein  also

participated in the offence, especially since he has not been

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shown to be a friend or relative of the other accused, or to

have any specific motive for murdering the deceased.

8. In this regard, we would first like to turn our attention to

the  nature  of  injuries  suffered  by  the  deceased.   As

mentioned  supra,  the  appellant  was  supposed  to  have

assaulted  the  deceased  with  a  lathi,  while  the  other  two

accused assaulted the deceased with sharp cutting weapons

such as an axe and sickle. The evidence of the doctor and

the  post-mortem  report  disclose  that  the  deceased  had

sustained  seven  injuries,  out  of  which  five  were  incised

injuries. The other two were, firstly, an abrasion of size 2 x 1

cm  on  the  left  frontoparietal  region,  and  secondly,  a

lacerated wound of size 6.5 x 1.5 cm on the right knee joint.

The death was opined to have occurred on account of the

incised  injuries  numbered  2,  5  and  7  in  the  post-mortem

report,  though  even  Injury  No.  5,  an  incised  wound

measuring 18 x 6 cm on the chest and abdomen, was stated

to  be  individually  sufficient  to  cause  death.  The  wound,

which started in the middle of the sternum, extended up to

the abdomen, ending 6 cm above the umbilicus. Parts of the

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small and large intestines were also found lying outside the

wound.  

9. Thus, from the post-mortem report and the evidence of

the doctor, it is amply clear that the death was caused due

to incised injuries, of such a nature which could have been

caused  by  the  axe  and  sickle  carried  by  the  other  two

accused. On the other hand, the other two injuries, being a

laceration  and  an  abrasion,  which  could  possibly  be

attributed to the appellant, may even have been a result of

the deceased falling to  the ground,  since injuries such as

bruises,  abrasions  and  lacerations  may  very  well  be

sustained as a result of a fall. Thus, there does not appear to

be  strong  evidence  of  the  active  participation  of  the

appellant in the offence.

10. A  perusal  of  the  evidence  of  PWs  14  and  15  raises

further  suspicion  in  the  mind  of  the  Court  about  the

complicity of the appellant herein in the offence in question.

Though  in  their  examination-in-chief,  these  witnesses

deposed that the appellant herein assaulted the deceased

with a lathi on his knee and head, it was proved in the cross-

examination that these statements made before the Court

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were “improvements”. If these improvements are excluded

from consideration from the evidence of PWs 14 and 15, it

can be safely said that the prosecution has not proved its

case beyond reasonable doubt about the active involvement

of the appellant in the offence in question through any overt

act.

11. Proceeding on the basis that the appellant was present

on  the  spot  of  the  offence,  we  do  not  find  that  the

commission  of  the  offence  of  murder  stands  proved  as

against the appellant with the help of Section 34, IPC, either.

In  order  to  invoke  the  principle  of  joint  liability  in  the

commission of a criminal act as laid down in Section 34, the

prosecution should  show that  the criminal  act  in  question

was done by one of the accused persons in furtherance of

the common intention of all. If this is shown, the liability for

the offence may be imposed on any one of the persons in

the same manner as if the act was done by him alone.  It

may  be  difficult  to  procure  direct  evidence  to  prove  the

intention of  an individual,  and in  most  cases it  has to be

inferred from the facts  and relevant  circumstances of  the

case. The common intention may be through a pre-arranged

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plan, or it may be generated just prior to the incident. Just as

a combination of persons sharing the same common object

is  one of  the features  of  an unlawful  assembly,  so  is  the

existence  of  a  combination  of  persons  sharing  the  same

common intention one of the features of Section 34.  

12. As  held  by  the  Constitution  Bench  of  this  Court  in

Mohan  Singh v. State  of  Punjab,  AIR  1963  SC  174,

common  intention  denotes  action  in  concert,  and  a  prior

meeting of minds—the acts may be different, and may vary

in  their  character,  but  they are all  actuated by the same

common intention.  However, prior concert in the sense of a

distinct  previous  plan  is  not  necessary  to  be  proved.  As

mentioned supra,  the  common intention  to  bring  about  a

particular result may well develop on the spot as between a

number of persons. Thus, the question as to whether there is

any common intention or not depends upon the inference to

be drawn from the proven facts and circumstances of each

case. The totality of the circumstances must be taken into

consideration  in  arriving  at  the  conclusion  whether  the

accused persons had the common intention to commit the

offence with which they could be convicted.

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13. The  instant  case  must  be  assessed  in  terms  of  the

above legal position. Looking to the facts and circumstances

at hand, i.e. that the appellant herein had no specific motive

to participate in the commission of the offence, did not have

any rivalry with the deceased or his family, and has not been

shown to be a friend, relative or hireling of the other two

accused,  we  are  of  the  considered  opinion  that  the

prosecution has failed to prove any common intention on the

appellant’s part, inasmuch as there is no hint of any motive

or reason for him to have either participated in pre-planning

the  murder  of  the  deceased,  or  to  develop  the  common

intention to do so while present at the spot of the offence.

We are of the opinion that both the Courts have concluded

against  the  appellant  merely  on  assumptions  and

conjectures  and  not  on  reliable  evidence,  in  spite  of  the

prosecution having failed to discharge its burden to prove

the case against the appellant beyond reasonable doubt.   

14. It has been brought to our notice that the appellant has

already suffered more than five years of imprisonment. Be

that as it may, since we find that the evidence against the

appellant  is  shaky  and  insufficient  to  bring  home  guilt

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against him, we are of the opinion that the benefit of doubt

must  enure  to  him.  Hence,  the  judgment  of  conviction

passed by the Trial Court and confirmed by the High Court as

against  the  appellant  stands  set  aside.  The  appellant  is

acquitted from the charges levelled against him. Since he is

already on bail, he need not be arrested in connection with

the crime in question. The bail  bonds, if any, executed by

him stand discharged. The appeal is allowed accordingly.

............................................J. (Mohan M. Shantanagoudar)

............................................J. (K. M. Joseph)

New Delhi; December 16, 2019.

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