Daya Shankar vs State Of M.P

Daya Shankar ..Appellant

Versus

State of M.P. ..Respondent

JUDGMENT

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

2 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

3 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

4 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

5 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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