Komal vs State Of M.P

Komal ..Appellant

Versus

State of M.P. ..Respondents

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 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

3 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.

4 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

7 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

8 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-`-

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

9 New Delhi, February 09, 2009

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