Madhya Pradesh High Court
Hariram vs State Of M.P. on 27 July, 2022
Author: Rajeev Kumar Shrivastava
Bench: Gurpal Singh Ahluwalia, Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
&
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
CRIMINAL APPEAL NO.408 OF 2012
Between:-
(1) HARIRAM, SON OF NANNULAL
HARIJAN, AGED ABOUT 29 YEARS,
OCCUPATION- AGRICULTURIST, RESIDENT
OF VILLAGE- BELAEE, POLICE STATION-
BAHADURPUR, TEHSIL- MUNGAWALI,
DISTRICT ASHOK NAGAR (MP)
(2) VEER SINGH, SON OF NANNULAL
HARIJAN, AGED 27 YEARS, OCCUPATION-
AGRICULTURE, RESIDENT OF VILLAGE
BALAEE, POLICE STATION- BAHADURPUR,
TEHSIL-MUNGAWALI, DISTRICT ASHOK
NAGAR (MP)
.... APPELLANTS
(SHRI ASHOK KUMAR JAIN- COUNSEL FOR THE
APPELLANTS)
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION
BAHADURPUR, DISTRICT ASHOK NAGAR
(MP)
....RESPONDENT
2
(SHRI SUSHANT TIWARI - PUBLIC PROSECUTOR FOR
THE RESPONDENT/ STATE)
Reserved on : 14th July, 2022
Delivered on : 27 /07/2022
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This appeal coming on for final hearing, Hon'ble Shri
Justice Rajeev Kumar Shrivastava, passed the following:-
JUDGMENT
The present criminal appeal under Section 374 of CrPC has been filed by appellants- Hariram and Veer Singh against the judgment of conviction and sentence dated 30/03/2012 passed in ST No.45 of 2011 by Second Additional Sessions Judge (FTC), Mungawali, District Ashok Nagar whereby appellant No.2-Veer Singh has been convicted under Section 302 of IPC and appellant No.1- Hariram has been convicted under Section 302/34 of IPC and both the appellants have been sentenced to undergo Life Imprisonment with fine of Rs.5,000- 5,000/- with default stipulation.
(2) Prosecution case, in short, is that appellants are the brothers of deceased Shishupal, whose father Nannulal, was having a tractor 3 and land in his name and was living with deceased Shishupal. Nannual, father of the deceased, expressed his desire to appellants and deceased Shishupal that he would make partition of property consisting of one tractor and the land after payment of loan amount of tractor and expenses of marriages. As deceased Shishupal was living with his father Nannulal, therefore, appellants were having animosity with deceased Shishupal. On the fateful day i.e. 15-12- 2010 at around 08:00 pm, after completion of labour work, when deceased Shishupal came home and was standing in the courtyard of his house, at that time, appellants- accused arrived there and hurled abuses which was objected by Shishupal. Thereafter, appellant Hariram caught hold of both hands of Shishupal and appellant Veer Singh inflicted axe blow at the back of head of Shishupal as a result of which, blood started oozing. Accused Veer Singh again gave an axe blow from the blunt side on his right eye due to which Shishupal sustained swelling in his eye. On hearing screams, Bhamra, Kalla Harijan and father of deceased i.e. Nannual rushed to the spot for rescue. The appellants also threatened the 4 deceased for dire consequences.
(3) On the next day i.e. 16-12-2010 at around 09:30 in the morning, Shishupal along with father Nannulal went to police station Bahadurpur, where a report was lodged vide Crime No.279 of 2010. Matter was investigated and injured Shishupal was sent to PHC Bahadurpur for medical examination where Dr.Y.S.Tomar medically examined him. On medical examination, the doctor found incised wound on the right side of head and on the occipital region and above the right eye found contusion and swelling. The nature of injuries sustained by Shishupal were grievous on the head, therefore, he was referred to District Hospital, Ashok Nagar for X- ray. On the way to District Hospital, Ashok Nagar, Shishupal succumbed to the injuries. Dr. KK Gupta, who was posted in the District Hospital, Ashok Nagar informed in-charge of Police Station Ashok Nagar on the basis of which, merg intimation No.Q/2010 was recorded on 16-12-2010 at about 05:15 pm, copy of which was sent to Police Station Bahadurpur on 17-12-2010 at around 07:00 pm whereupon Merg No.35/2010 under Section 174 of CrPC was 5 recorded regarding the death of Shishupal. On 17-12-2010, for conduction of postmortem of deceased safina form and Naksha Panchnama were prepared and thereafter, Dr. KK Gupta conducted postmortem of deceased and the body of deceased was handed over to his father Nannulal. Thereafter, police recorded the statements of witnesses and prepared spot map. The accused were arrested and on the basis of memorandum an axe was seized from the house of accused Veer Singh. After due deliberations and completion of investigation, a charge sheet was filed before the competent Court of Criminal jurisdiction. Since the matter was of the jurisdiction of Sessions Court, it was committed to it. Charges were framed under Section 302 of IPC against appellant Veer Singh and Section 302 read with Section 34 of IPC against appellant Hariram. (4) Accused abjured their guilt and pleaded complete innocence. Statements of accused under Section 313 of CrPC were recorded in which they denied the charges and it was the say of the accused that they have falsely been implicated due to animosity. However, they have not examined any witness in their defence. The prosecution, in 6 order to prove its case, examined as many as fourteen witnesses. (5) The trial Court after appreciating and analyzing the evidence of witnesses and other materials available on record, has convicted the appellants for aforesaid offence and awarded punishment, as mentioned in para 1 of this judgment.
(6) It is contended on behalf of the appellants that the trial Court has wrongly convicted and sentenced the appellants without appreciating evidence available on record, therefore, the impugned judgment is illegal and contrary to law. In the statements of material prosecution witnesses there are major contradictions and omissions. Father of deceased Nannulal (PW1), minor son of deceased Neeraj (PW2), Bhamra (PW3), Kalla (PW6) and Shishupal (PW7) have not supported the prosecution version. Although there is contradiction and omission in the statement of wife of deceased Rajkumari (PW5) and whose statement is not fully corroborated by medical evidence, but the Trial Court has wrongly held the appellants guilty. It is further contended that the incident took place on 15-12-2010 while the FIR was lodged on 16-12-2010 at around 09:30 in the morning 7 and no explanation has been given regarding delay in lodging the FIR. It is further contended that the deceased might have received injuries either by falling on the stones or by falling on the iron palm. The appellants have been falsely implicated. The prosecution has failed to establish the appellants- accused guilty beyond reasonable doubt. On these grounds, the appellants deserve acquittal and the impugned judgment passed by Trial Court deserves to be set aside.
(7) Per contra, the counsel for the State supported the impugned judgment and submitted that there is no infirmity in the impugned judgment and the trial Court has not committed any error in convicting and sentencing the appellants for the aforesaid offence. Hence, prayed for dismissal of this appeal. (8) Before adverting to the merits of the case, it would be appropriate to throw light on the relevant provisions of Sections 299 and 300 of Indian Penal Code.
The Law Commission of United Kingdom in its 11th Report proposed the following test :
8
"The standard test of 'knowledge' is, Did the person whose conduct is in issue, either knows of the relevant circumstances or has no substantial doubt of their existence?"
[See Text Book of Criminal Law by Glanville Wiliams (p.125)] ''Therefore, having regard to the meaning assigned in criminal law the word "knowledge" occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellants caused the injury with intention of causing such bodily injury as the appellants knew to be likely to cause death of deceased. So, clause Secondly of Section 300 IPC will also not apply.'' The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of Section 300 IPC reads as under:
''Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words "intention of causing death" occur in 9 clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death of deceased in the ordinary course of nature. This is also borne out from illustration(c) to Section 300 IPC which is being reproduced below:-
"(c) A intentionally gives Z a sword-cut or club-
wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
Therefore, the contentions advanced in the present case and which are frequently advanced that the accused had no intention of causing death of deceased is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC.
The scope and ambit of clause Thirdly of Section 300 IPC was considered by the Supreme Court in the decision in Virsa Singh Vs. State of Punjab reported in AIR 1958 SC 465 and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear blow 10 and the injury sustained by the deceased was "a punctured wound 2"x =" transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. Three coils of intestines were coming out of the wound." After analysis of the clause Thirdly, it was held: -
"The prosecution must prove the following facts before it can bring a case under S. 300 "Thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential 11 and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S. 300 "Thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
(9) In the case of Arun Nivalaji More vs. State of Maharashtra (Case No. Appeal (Cri.) 1078-1079 of 2005), it has been observed as under :-
"11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses 12 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done
(i) with the intention of causing death; or
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the act is likely to cause death."
(10) If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the expression 13 "if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death" where intention is the dominant factor. However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death" where knowledge is the dominant factor.
What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word 'knowledge' is the fact or condition of being cognizant, conscious or 14 aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under: -
"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended."
In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -
'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."15
(11) Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Wheoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
(12) Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence. The knowledge of third condition contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally speaking, 16 culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees.
(13) Section 300 of Indian Penal Code runs as under :-
"300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
(14) ''Culpable Homicide'' is the first kind of unlawful homicide. It is the causing of death by doing ;(i) an act with the intention to cause death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; or, (iii) an act with the knowledge that it was likely to cause death.
(15) Indian Penal Code recognizes two kinds of homicide :(1) 17 Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable homicide; (i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and (ii) Culpable homicide not amounting to murder (Section 304 of IPC).
(16) A bare perusal of the Section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not the intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e., mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
There are three species of mens rea in culpable homicide.(1) An intention to cause death; (2) An intention to cause a dangerous 18 injury; (3) Knowledge that death is likely to happen. (17) The fact that the death of a human being is caused is not enough unless one of the mental state mentioned in ingredient of the Section is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party. Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder. (18) In the scheme of Indian Penal Code, "Culpable homicide" is genus and "murder" is its specie. All "Murder" is "culpable homicide" but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable 19 homicide is not amounting to murder.
(19) In the case of Anda vs. State of Rajasthan reported in 1966 CrLJ 171, while considering "third" clause of Section 300 of IPC, it has been observed as under:-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."
(20) In the case of Mahesh Balmiki vs. State of M.P. reported in (2000) 1 SCC 319, while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
"There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts 20 and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
(21) In the case of Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat reported in (2003) 9 SCC 322, it has been observed as under :-
"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct 21 consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not 22 must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.'' (22) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP reported in (2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, 23 are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.
(23) In the case of Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:-
"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant 24 had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased."
(24) In the case of State of Rajasthan v. Kanhaiyalal reported in (2019) 5 SCC 639, this it has been held as follows:-
"7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also 25 knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight;
(iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner." (25) In the case of Bavisetti Kameswara Rao v. State of A.P. reported in (2008) 15 SCC 725, it is observed in paragraphs 13 and 14 as under:-
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical 26 fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465] , the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 27 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16) "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."
The further observation in the above case were:
(Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) "16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved.
But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question....
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, 28 if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact."
(26) We shall also go back into the history to understand Section 34 of IPC as it stood at the inception and as it exists now. Generally speaking, Section 34 IPC provides an acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
(27) In the recent decision of Jasdeep Singh alias Jassu vs. State of Punjab decided on 7th January, 2022 in Criminal Appeal No.1584 of 2021 (Arising Out of SLP (Crl) No. 1816 of 2019) the Hon'ble Apex Court has observed as under in detail:-
''19. On a comparison, one could decipher that the phrase "in furtherance of the common intention" was 29 added into the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view:
"It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that 30 the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals."
20. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word 'omission', meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.
21. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.
22.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34IPC does not get attracted.
23. It is a team effort akin to a game of football involving several positions manned by many, such as 31 defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.
24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offence.
25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.
26.The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
27.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention 32 having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.'' (28) The scope and essence of Section 34 of IPC can be borne out of excerpts from judgments/decisions mentioned as under:-
In the case of Suresh v State of U.P. (2001) 3 SCC 673, it has been held as under:-
"24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the 33 strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC. xxx xxx xxx
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is 34 required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
In the case of Lallan Rai v. State of Bihar, [(2003) 1 SCC 268], it has been held as under:-
"22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused -- though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
In the case of Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126] it has been held as under:-
"24. Section 34 is only attracted when a specific criminal 35 act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."
In the case of Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1) it has been held as under:-
"...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34includes a series of acts and, further, "act" includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait". By S. 38, when several persons are engaged or concerned in the 36 commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for "that act" and "the act" in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."
In the case of Mehbub Shah v. Emperor (AIR 1945 PC 148) it has been observed as under:-
"....Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all." Under the section, the essence of that 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. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be 37 imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan..."
In the case of Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605] it has been observed as under:-
"7...It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly..."
In the case of Krishnan & Another v. State of Kerala [(1996) 10 SCC 508], it has been observed as under:-
"15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, 38 therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur."
In the matter of Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110] it has been held as under:-
"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture...."
In the matter of Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620] it has been observed as under:-
"8. ...As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the 39 criminal action - be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
In the matter of Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305] it has been held as under:-
"12. ...As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention, then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.......... "
40
In the matter of Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)] it has been observed as under:-
"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this 41 individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22.Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab 1991 (1) SCC 519).
23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case..."
In the matter of Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)] it has been observed as under:-
"87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section 34 IPC applies where two or more 42 accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase "common intention" means a pre- oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case."
30. The aforesaid principle has also been dealt with in extenso by the Apex Court in Virendra Singh V. State of Madhya Prades ((2010) 8 SCC 407) through the following paragraphs:
"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of 43 the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465.
16. 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. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record.
17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply. xxx xxx xxx
36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 30 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories: (1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the 44 punishment of such persons, all being liable to be punished alike.
37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with them circumstances when a person is vicariously responsible for the acts of others.
38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.45
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
41. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of felony is done in furtherance of the act.
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34."
(29) The well-established principle of law underlying provisions of Section 34 of IPC emerges from decision of Justice Vivian Bose 46 in Pandurang, Tukia and Bhillia vs. The State of Hyderabad 1955 SCR (1) 1083 wherein it has been held as under:-
"33. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor [72 IA 148 at 153 and 154]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre- arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King- Emperor [72 IA 148 at 153 and 154] and Mahbub Shah v. King-Emperor [52 IA 40 at 49] . As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice". 34. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan 47 however hastily formed and rudely conceived. But pre- arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose." (emphasis supplied) (30) Similarly, in the matter of Virendra Singh v. State of MP (2010) 8 SCC407 the Hon'ble Apex Court has explained the ambit of words "in furtherance of common intention of all" and has observed as under:-
''15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v.48
State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ 465] ."
(31) Followings are fundamental principles underlying Section 34 of IPC:-
''(i) Section 34 does not create a distinct offence, but is a principle of constructive liability;
(ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done;
(iii) There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and
(iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime.'' (32) The above fundamental principles have been adopted and applied by Hon'ble Apex Court in the matter of Chhota Ahirwar v.
State of MP (2020) 4 SCC 126 as under:-
"26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. [See Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 : (2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC 49 OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1], "they also serve who stand and wait".
27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other.'' (33) We have heard arguments advanced by the learned counsel for the parties and carefully scanned the evidence of witnesses brought on record in the light of findings returned in the impugned judgment.
(34) Nannu (PW1) who is the father of the deceased in para 1 of his examination-in-chief deposed that prior to six-seven months of the incident, it was 08:00 in the night, he was at home, his son Shishupal had gone to the village for consuming liquor. When he came back home, he fell down in the courtyard of his home. He had seen him in unconscious state and he had sustained injury on his head. This witness further deposed that when he screamed, then Kalla and Bhamra came and all of them lifted up Shishupal. On the next day, the father-in-law of Shishupal came where-from they went to the Police Station Bahadurpur where also Shishupal was in 50 unconscious state. This witness in cross-examination para 5 stated that deceased Shishupal was lying near the iron palm and it could be possible that due to falling on that iron palm or on the stones, he could have sustained injuries. In the same para, this witness admitted to have got written the report. He further admitted that he had got written in the complaint that the deceased sustained injuries due to falling. Shishupal had not lodged the report as he was in unconscious state and he had regained his conscious for sometime and he had uttered something but in the way to Ashok Nagar Hospital, he succumbed to the injuries sustained by him. (35) Neeraj (PW2), the minor son of the deceased in para 1 of his examination-in-chief deposed that his father deceased Shishupal had come home after consuming liquor and fell down on stones on account of which he had sustained injuries and got unconscious. When his father had come after consuming liquor he was also sleeping in the home. His father deceased had fallen on the stones after consuming liquor. This fact was told to him by his grand- father Nannu. This witness denied to have seen his father fallen 51 having consumed liquor. This witness further stated in para 2 of his examination-in-chief that before giving statement in the Court his counsel had got him understood as to how the statement was to be made. He further stated that his counsel had asked him to make statement that his father deceased had come home after consumption of liquor and in state of intoxication at home he had fallen down on the stones. While giving such statement, this witness stated that the counsel who had got him understood the statement to be given before the Court is present in the Court now. This witness did not support the prosecution version and turned hostile.
(36) Bhamra (PW3) stated that he is known to both the parties. It was about 08:00-09:00 in the night. Nannulal screamed that Shishupal had fallen down. He had rushed there where he found to have sustained injury on the back of head whereby blood was oozing out. This witness did not support the story of prosecution and turned hostile. In para 2 this witness stated that he had told the police at the time of giving statement that Nannulal, father of the 52 deceased, had purchased a tractor on loan by putting his land on mortgage at the Bank. This witness admitted that Shishupal used to reside with his father.
(37) Rajkumari (PW4) in para 1 of her examination-in-chief deposed that the deceased was her husband and accused Veer Singh and Hariram are her brothers-in-law. On the date of incident, her husband had come home after performing labour and standing in the courtyard of house. At that time, accused Hariram caught hold of hands of her husband and another accused Veer Singh inflicted axe blow on his head from backside. Veer Singh inflicted another blow of axe from blunt side on the right eye. Because of axe blows, her husband fell down and became unconscious. Due to sustenance of injuries of axe, Kalla and Bhamra had lifted her husband to inside the house. This witness further stated that when her husband was assaulted, at that time she was making poppadom. In her cross- examination para 9 this witness deposed that when accused Hariram had caught hold of the hands of her husband, accused Veer Singh inflicted axe blows twice; one on the backside of his head 53 and second one on his eye. Blade side of axe was about half of the palm. It appears that the statement given by this witness remained unshaken in her cross-examination.
(38) Mukesh (PW5) admitted to have made signatures on documents Ex.P7 to Ex.9, however, he deposed that he had made signatures on those documents on the instructions of the Police and he did not know as to what were the documents. Neither anybody had told the fact of seizure of weapon to the police nor any weapon was seized in his presence. This witness further expressed his ignorance about the proceedings and stated that he did not know for what purpose the police had taken his signatures. This witness did not support the story of prosecution and turned hostile. (39) Kalla (PW6) in his examination-in-chief para 1 stated that Nannu, the father of deceased Shishupal screamed that what had happened to Shishupal, on which he rushed to the spot and found that Shishupal was lying to whom he lifted him up to inside the home. Thereafter, Shishupal had died. This witness expressed his ignorance about his killing. This witness also did not support the 54 prosecution version and turned hostile.
(40) Shishupal (PW7) though admitted to have made signatures on documents Ex.P7 to Ex.10 but expressed his ignorance about the proceedings and stated that he did not know for what purpose the police had taken his signatures. This witness did not support the story of prosecution and turned hostile.
(41) Dr. YS Tomar (PW8) who was posted as Medical Officer in PHC, Bahadurpur deposed that on 16-12-2010 at around 10:45 in the morning he had conducted MLC of Shishupal and found a lacerated wound on the right side of occipital region of head and size 4.5x0.5x deep, scalp clotted blood was present. One contusion with swelling size of4x3 cm on right eyelid was present. Thereafter, he advised for X-ray of injury no.1. MLC report is Ex.P12. (42) Surat Singh (PW9) who was posted as Head Constable at Police Station Bahadurpur on 16-12-2010 deposed that Shishupal lodged FIR Ex.14 and this report was written in accordance with statement made by Shishupal on which he had made signatures. It is further stated by him that thereafter, he had sent Shishupal for his 55 medical examination to PHC, Bahadurpur. After death of Shishupal, merg intimation report Ex.P15 was received at Police Station Bahadurpur on the basis of which, he had recorded merg intimation u/S 174 of CrPC vide Ex. P16 containing his signatures. (43) Sughar Singh (PW10) who was posted as ASI at Police Station Bahadurpur in his evidence deposed that he had prepared spot map Ex.17 and statements of Rajkumari (wife of deceased), Kalla, Neeraj and Bhamra were recorded under Section 161 of CrPC and thereafter, diary was handed over to Police Station. This witness in para 5 of his cross-examination deposed that at the time of recording the statement of Rajkumari, the wife of the deceased, she disclosed that accused Veer Singh had inflicted axe blows to her husband deceased Shishupal.
(44) Dharmendra Rajak (PW11) in his evidence deposed that he had given written information Ex.P15 regarding death of deceased at Police Station Ashok Nagar, on the basis of which a merg was recorded.
(45) OP Arya (PW12) who was posted as Police Sub-Inspector at 56 Police Station Bahadurpur deposed that he had conducted investigation initially in connection with Crime No.279 of 2010 and arrested accused vide Ex.P7 and Ex.P8. He had also seized an axe from the possession of accused Veer Singh on the basis of memorandum Ex.P9 recorded u/S 27 of Evidence Act. This witness in cross-examination para 4 admitted that the axe which was seized from accused Veer Singh, was not having any bloodstain. (46) Dr. KK Gupta (PW13) who was posted as Medical Officer on 17-12-2010, had conducted autopsy of deceased Shishupal. He found following injuries on the person of the deceased:-
''(1) Stitched wound about 5 cm long over posterior part of right parietal region in coronal plain scalp (head). (2) Blacking on right eye'' The doctor opined that the cause of death of deceased to be cardio respiratory failure due to head injury. Duration of death was more than six hours and less than 24 hours. The doctor further opined that mode of injury was dependent upon the circumstantial evidence. This witness in para 2 of his examination-in-chef stated that the deceased had sustained fracture of right parietal and 57 occipital bone right side with 3 cm triangular shaped bone fractured and of parietal bone depressed. Laceration of related part of meninges with laceration with clotted blood present in related part of occipital and parietal lobe of brain.
(47) PS Chauhan (PW14) who was posted as Police Sub-
Inspector at police station Kotwali, Ashok Nagar deposed that on 17-12-2010 after getting information regarding the death of deceased Shishupal, he reached District Hospital, Ashok Nagar and thereafter, prepared Safina form and Naksha Panchanama vide Ex.P2 and found that cause of death of deceased was due to head injuries. Thereafter, he sent requisition form for conduction of postmortem of deceased. After postmortem, the body of deceased was handed over to his father Nannulal vide Ex.P3. (48) From the above discussion, it is apparent that most of the material witnesses have not supported the prosecution case except wife of the deceased Rajkumari (PW4) who in her evidence stated that on the alleged date of incident she was making poppadom and in the courtyard of her house, accused Hariram had caught hold of 58 the hands of her husband deceased, accused Veer Singh inflicted axe blows twice; one on the backside of his head and second one on his eye and her evidence is fully supported the prosecution story as her statement remained unchanged in her cross-examination too. (49) So far as the contention of counsel for the appellants pertaining to delay in lodging the FIR is concerned, the Hon'ble Supreme Court in various decisions has considered the effect of delay in lodging FIR and has held that mere delay in lodging the report is not by itself necessarily fatal to the case of prosecution; the delay has to be considered in the background of the facts and circumstances of each case and is a matter of appreciation of evidence by the Court of fact. There are such typed of cases where much time is consumed in taking injured to the hospital for medical aid and victim/complainant/witness finds no time to lodge the report promptly, there may also be cases where on account of fear and threats, victim/complainant/witness may avoid going to the police station immediately. The time of occurrence, distance to police station, mode of conveyance available, are all the relevant factors 59 which have a bearing on the question of delay in lodging the report. Thus, this Court does not find any substance in the contention advanced by counsel for the appellants.
(50) So far as the next contention of counsel for the appellants that there is no overt act attributed to appellant No.1 Hariram and therefore, he cannot be convicted under Section 302 of IPC with the aid of Section 34 of IPC is concerned, in catena of decisions the Hon'ble Apex Court has held that where a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to commission of criminal offence charged, each one of the persons sharing common intention is constructively liable for criminal act done by one of them.
(51) So far as the contention of learned counsel for the appellants that the prosecution witnesses did not support the prosecution case and therefore appellants deserve acquittal is concerned, the Hon'ble Apex Court in catena of decisions has held that in the matter of 60 appreciation of evidence of witnesses, it is not the quantity of witnesses but the quality of evidence which is very important as there is no requirement under the law of evidence that any particular number of witness has to be examined to prove or disprove the fact. In the case at hand, the statement given by the wife of deceased Rajkumari is fully corroborated the FIR lodged by deceased himself which appears to have emerged as Dying Declaration. The FIR was lodged by deceased Shishupal himself on the following day of the alleged incident i.e. 16-12-2010 at around 09:30 in the morning at police station Bahadurpur, Ashok Nagar, distance of which is 20 kilometers from the place of occurrence. The incident is alleged to have taken place on 15-12-2010 at around 08:00- 09:00 pm. From police station to Primary Health Centre, Bahadurpur and thereafter to District Hospital Ashok Nagar deceased Shishupal was being brought; however, in the midst, he succumbed to the injuries. Since Police concerned had recorded a written complaint/FIR on 16-12- 2010 vide Ex.P14 in accordance with statement given by deceased Shishupal; therefore, the FIR shall be treated as Dying Declaration. 61 The doctor also opined that cause of death of deceased to be cardio respiratory failure due to head injury. On the basis of memorandum, the deadly weapon axe was recovered from the possession of accused Veer Singh.
(52) In the above mentioned facts and circumstances and on the basis of appreciation and evaluation of evidence of witnesses, the Trial court appears to have not committed any error in rendering the judgment of conviction and sentence while recording findings in correct perspective, which cannot be termed either to be perverse or against the evidence available on record. This appeal being sans merits, deserves to be dismissed.
(53) Ex-consequenti, the criminal appeal fails and is hereby dismissed. The impugned judgment of conviction and sentence dated 30/03/2012 passed in ST No.45 of 2011 by Second Additional Sessions Judge (FTC), Mungawali, District Ashok Nagar is hereby affirmed.
(54) Since appellant No.1- Hariram is reported to be on bail as per order dated 04-01-2019 passed by this Court, therefore, his bail 62 bonds & surety bonds stand cancelled and appellant No.1 Hariram is directed to surrender immediately to serve out the remaining part of his jail sentence awarded by Trial Court. Since appellant No.2 Veer Singh is reported to be in jail as per report dated 12-08-2021 received from the Central Jail, Gwalior, therefore, Office is directed to inform appellant No.2 Veer Singh through the Jail Superintendent concerned along with copy of this judgment.
Registry is directed to send back the record to the trial court along with copy of this judgment.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
Digitally signed by MAHENDRA
BARIK
Date: 2022.07.28 10:30:35 +05'30'