Mallanna S/O Narsappa Erators vs The State Through Chittapur P.S. on 8 September, 2020

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Karnataka High Court

Mallanna S/O Narsappa Erators vs The State Through Chittapur P.S. on 8 September, 2020

Bench: Hanchate Sanjeevkumar

           IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

  DATED THIS THE 08th DAY OF SEPTEMBER, 2020

                           BEFORE

 THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

             CRIMINAL APPEAL NO.3562/2012
Between:

   1. Mallanna S/o Narasappa Erat,
      Age 42 years, Occ. Agriculture,

   2. Sharanappa S/o Narsappa Erat,
      Age 32 years, Occ. Agriculture,

   3. Narsappa S/o Basappa Erat,
      Age 75 years, Occ. Agriculture,

       All R/o Allur, Tq. Chittapur,
       Dist. Gulbarga.

                                         ... Appellants
(By Sri R.S.Lagali, Amicus Curiae)

And:

The State through Chittapur P.S.
Represented by Public Prosecutor,
High Court of Karnataka,
Circuit Bench, Gulbarga.
                                        ... Respondent

(By Sri Gururaj Hasilkar, HCGP)
                               2



      This Criminal Appeal is filed under 374(2) of Code of
Criminal Procedure praying to set aside the judgment of
conviction dated 03.02.2012 and order on sentence dated
08.02.2012 passed by the Presiding Officer, Fast Track
Court-I at Gulbarga in S.C.No.101/2002.

      This appeal having been heard and reserved for
judgment on 19.08.2020, coming on for "Pronouncement
of Order" this day, the Court delivered the following;


                          JUDGMENT

The above appeal is filed challenging the judgment of conviction dated 03.02.2012 and order on sentence dated 08.02.2012 passed in Sessions Case No.101/2002 by the Court of the Presiding Officer, Fast Track Court-I, (hereinafter referred to as the 'Sessions Court') Gulbarga.

2. Marshalling of facts as per complaint and charge sheet materials that the accused Nos.1 and 2 are the sons of accused No.3 and are distant relatives of the complainant, who are neighbourers and accused used to go to their house by using the pathway situated in front of the house of the complainant in respect of 3 which, the complainant and his brother-Sharanappa (deceased) were objecting the accused and as a result the relationship between them was strained and on 10.12.2001 at about 9.30 p.m. the complainant had gone to urinate by the side of his house and at that time, all the accused came and started abusing the complainant alleging that the complainant and the deceased Sharanappa were always obstructing them to use of pathway situated in front of the house of the complainant and at that time the accused picked up quarrel with the complainant and the accused No.2 picked-up stone and assaulted the complainant on the left portion of the chest and upon hearing the scream of the complainant at that time the deceased Sharanappa, PW.5 -Dyavappa, PW.7-Hanmanth, PW.2-Bhimabai who is wife of the complainant came to the spot and the deceased Sharanappa intervened and he was separating the pique and questioning the accused persons why 4 they were assaulting the complainant and at that moment the accused No.1 went back and brought the gun from his house stating that he would finish them today and fired the bullet which hit near the chest of the deceased-Sharanappa and as a result the deceased- Sharanappa sustained heavy bleeding injures and he fell down on the ground and succumbed to the said bullet injury and also it is stated that Gundamma, Mahadevamma and Monamma threw the stones to the complainant and also to the deceased and then the accused ran away.

Further it is stated that even though PW.2, PW.5 and PW.7 have tried to pacify the quarrel the accused did not heed to their words and by uttering the words they would kill the complainant and caused murder of the deceased as there was enmity in between them regarding using of pathway situated in front of the house of the complainant. Therefore, PW.1 - Ranekappa 5 the brother of the deceased, had lodged first information statement before the police and police have registered the crime in Crime No.152/2001 for the offences punishable under Sections 147, 148, 324, 504, 302 read with Section 149 Indian Penal Code (IPC) and Section 25 of the Arms Act, 1959 as against the appellants/accused and issued first information report.

3. Upon registration of crime, the police have started investigation and the Investigation Officer after collecting all the evidences and after completion of investigation filed charge sheet against the appellants/accused before the committal Court for the offences punishable under Sections 302, 324, 504 read with Section 34 of IPC and Section 25 of the Arms Act, 1959. The learned Magistrate after receipt of the charge sheet has taken cognizance of the alleged offences under Section 190 of Code of Criminal Procedure (Cr.P.C.) and furnished copies of charge sheet to the 6 accused as per Section 207 of Cr.P.C and since the offences alleged are exclusively triable by the Sessions Court, therefore, committed the case to the Sessions Court as per Section 209 of Cr.P.C.

4. The Sessions Court after receipt of the committal records had registered the case as Sessions Case No.3562/2012 and the Sessions Court had framed the charge against the appellants/accused for the offences punishable under Sections 324, 504, 302 read with Section 34 of IPC and Section 25 of the Indian Arms Act. Upon reading over and explained the charge to the appellants/accused, they pleaded not guilty and claims to be tried and accordingly by recording their pleas the Sessions Court has proceeded with trial.

5. During the trial the prosecution has got examined totally 21 witnesses as PWs.1 to 21 and got marked documents as Exs.P.1 to P.16 and got marked the material objects M.Os.1 to 14. After completion of 7 the prosecution evidences the appellants/accused have examined under Section 313 of the Criminal Procedure Code and put to them incriminating circumstances but the appellants/accused have simply denied the prosecution case and during the course of cross- examination of PWs.3 and 5 the appellants/accused through their defence counsel had got marked two contradictory statements as Ex.D1 from the side of PW.3 and as Ex.D2 from the side of PW.5 but the appellants/accused have not led any defence evidence and totally denied all the incriminating circumstances emerged in the evidences put to them and simply denied the prosecution case. Therefore, it is totally denial of prosecution case by the appellants/accused.

6. Thereafter, the Sessions Court has considered and analyzed the evidences on record and came to conclusion that the appellants/accused are guilty of the offences punishable under Sections 324 8 and 304 Part I read with Section 34 of Indian Penal Code and Section 25 of the Arms Act. The Sessions Court had acquitted the appellants/accused for the offence under Section 504 read with Section 34 of IPC. The learned Sessions Court had opined that the incident happened in a sudden spur of moment without there being premeditation and intention to commit murder of the deceased but developed at the spot itself and at the most the appellants/accused knew the fact that their act would result causing grievous injury likely to cause death. Therefore, the learned Sessions Court had opined that the appellants/accused have shared common intention so far as consequence of their act. Therefore, instead of recording conviction under Section 302 of IPC, but convicted for the offence under Section 304 Part I along with other offence under Section 324 of IPC and Section 25 of the Arms Act, 1959 with aid of Section 34 of IPC.

7. Being aggrieved by the said judgment of conviction and order on sentence, the appellants/accused have preferred the present appeal inter alia raising various grounds in the memorandum of appeal and also the learned counsel for the appellants/accused vehemently argued that even though the prosecution witnesses are not found to be believable. Further stated that there was so much contradictions revealed between the prosecution witnesses and therefore rendering the prosecution case unbelievable.

8. Further submitted that the allegation of Section 34 of IPC is not attracted in the present case so far as the appellants/accused Nos.2 and 3 are concerned. Since from the evidence on record it is revealed that the accused Nos.2 and 3 have not shared common intention along with accused No.1. Accused No.1 had returned to the house to collect gun and fired 10 on the deceased. Therefore, this is not shared by the accused Nos.2 and 3 and therefore submitted that the accused No.1 alone is held responsible for the offence committed under Section 304 Part I of IPC but the accused Nos.2 and 3 since did not share the common intention along with accused No.1. Therefore, the conviction of accused Nos.2 and 3 for the offence under Section 304 Part I of IPC along with accused No.1 is bad in law and contrary to the evidence on record.

9. Further submitted that from analysing the prosecution evidences much particularly the evidences of PWs.1, 2, 5 and 7 who are stated to be eyewitnesses to the incident but even though all the three accused have come to the spot and suddenly quarrel was developed, but, at that time all the accused did not have any common intention and also did not share any common intention among them to commit the murder either of the complainant or of the deceased - 11 Sharanappa. But during the course of quarrel the accused No.1 alone returned to the house and took out gun and in angry mood suddenly fired to the deceased. Therefore, submitted that there is no sharing of common intention by the accused Nos.2 and 3 along with accused No.1 to commit murder of the deceased. Therefore, when there is no evidence that the accused Nos.2 and 3 have not shared common intention along with accused No.1, the conviction recorded against accused Nos.2 and 3 for the offence under Section 304 Part I of IPC is not correct.

10. Further it is submitted that even upon perusing and analysing the evidences on record there are no cogent evidences to prove the guilt of the accused beyond reasonable doubt to show that the accused have committed the offences as alleged and the evidences of the prosecution witnesses are full of contradictions, omissions and embellishments. Therefore, the 12 prosecution case can be thrown out as the prosecution has failed to prove the guilt against the accused beyond reasonable doubt, hence, prayed to allow the appeal, acquit the appellants/accused from the charges levelled against them.

11. The learned counsel for the appellants/accused has relied on the judgment of the Hon'ble Apex Court in the case of Virendra Singh v. State of Madhya Pradesh [(2010) 8 Supreme Court Cases 407] and by relying with this judgment the learned counsel for the appellants/accused submitted that the element of Section 34 of IPC is not found in the case. Therefore, at the most the accused Nos.2 and 3 are liable to be convicted for the offence under Section 304 of IPC but not certainly for the offence under Section 304 Part I of IPC and also under Section 25 of the Arms Act, therefore, relied the above cited judgment of the Hon'ble Apex Court. 13

12. Per contra, the learned High Court Government Pleader submitted that the prosecution has placed cogent evidences before the Sessions Court that the appellants/accused have shared common intention to commit the murder of the deceased as well as the complainant but only successful in murdering the deceased and therefore the prosecution has proved the sharing of common intention between the appellants also and thus rightly held the appellants/accused are guilty of the charges levelled against them. But modified the conviction from the offence under Section 302 into 304 of IPC, submitted, it is wrong.

13. Further submitted that there are eyewitnesses to the incident who are PWs.1, 2, 5 and 7 and these witnesses have categorically deposed before the Sessions Court that all the three accused have shared common intention in furtherance of commission of offence of murder of the deceased and had taken the 14 quarrel with the complainant and were also intention to murder the complainant and thus, the accused No.1 took up gun and set fire on the deceased and thereafter the accused No.2 thrown the stone on the dead body of the deceased which itself shows that all the accused have come to the spot by sharing common intention and even at the most in a spur of moment on the spot all the three accused have developed common intention to commit the offences as alleged and thus in this way committed the offences as alleged which is proved by the prosecution by placing cogent, believable and reliable evidences. Therefore, prayed to dismiss the appeal by affirming the judgment of conviction and order on sentence.

14. Further submitted that the evidences of eyewitnesses PWs.1, 2, 5 and 7 are found intact and whatever may be the contradictions and omissions revealed they are minor in nature and cumulative effect 15 of evidences are taken together. It is proved that the accused committed the alleged offences as they found guilty of the alleged offences as held by the Sessions Court. Therefore, he prays to dismiss the appeal.

15. I have heard the arguments canvassed by the learned counsel for the appellants/accused as well as High Court Government Pleader and anxiously gone through the records including both oral and documentary evidences placed by the prosecution and the other materials.

16. Before adverting to the role of each of witnesses and making analysis of them it is just and necessary to have a glance of role of each of witnesses which are as follows ;-

PW.1 is the complainant and brother of the deceased and also injured eyewitness; PW.2 is the wife of PW.1, who sustained injuries and eyewitness to the 16 incident; PW.3 is the wife of the deceased; PWs.4 and 13 are the panch witnesses to the inquest panchanama, PW.5 is the eyewitness; PW.6 is the Engineer who prepared the sketch of the spot; PW.7 is the eyewitness to the incident, PWs.8 and 9 are stated to be eyewitnesses but turned hostile; PW.10 is the hearsay witness and PW.11 is the son of the deceased and eyewitness; PW.12 is the inquest panch; PW.13 is a spot panch; PW.14 is the panch witness of seizure of articles as per Ex.P.8; PW.15 is the Police Inspector who had conducted first part of investigation; PW.16 is the Doctor who had conducted autopsy on the dead body of the deceased; PW.17 is the Engineer who has given report that on the date and time of the incident there was power supply; PW.18 is the PSI who has received FIR and registered the crime; PW.19 is the Doctor who has examined PWs.1 and 2; PW.20 is the Police Constable who carried the dead body to the hospital for 17 conducting post mortem examination and PW.21 is the Police Constable who had carried the articles to the Forensic Science Laboratory.

17. Upon considering the evidences as discussed above in the background of the submissions made by the learned counsel for the appellants/accused regarding sharing of common intention by the appellants/accused and also on other materials it is necessary to analyse the genesis of the occurrence of the incident that there was a dispute between the complainant and the appellants/accused in regard to pathway situated infront of the house of the complainant and the complainant was objecting the appellants/accused to transgress on the said pathway and even though as per the evidence of PW.1 there was separate way to the accused but the accused using the said pathway and in this regard, there was enmity developed between them for about two years prior to the 18 incident and therefore in this way animosity is developed regarding using of said pathway.

18. On fateful day on 10.12.2001 at about 9.00 p.m., the present incident was occurred. PW.1 is the complainant who has given complaint before the police and gave evidence that the accused were using the pathway situated infront of his house and which was objected by PW.1 since the accused were having another pathway for use of them but instead of it the accused were using this pathway and therefore there was quarrel occurred between them and developed enmity between them.

19. It is further deposed that on the day of the incident at 9.30 p.m. the PW.1 went behind his house for urination and at that moment the accused No.2 came out from his house and thrown the stone on PW.1 and accused No.3 had also thrown the stone on the chest and upon hearing the scream of PW1, the PW.2 19 who is the wife of PW.1 came to the spot and also PW.3 the brother of the deceased have objected and also the deceased Sharanappa had objected the accused but accused have taken quarrel and assaulted the complainant. Then suddenly accused No.1 by saying that he would finish them accordingly went to his home and took up a gun and set fire on the deceased and it was hit to the chest of the deceased and deceased died on the spot. It is further stated that at that moment accused Nos.2 and 3 have also thrown the stone on the dead body of the deceased. Further deposed that accused Nos.2 and 3 have assaulted with stone and ran away and the deceased was sustained bleeding injury. Also it is deposed that due to the assault made by the accused Nos.2 and 3 the complainant and his wife PW.2 had also sustained injuries. Further deposed that he has lodged complaint as per Ex.P.1 and then police came to the spot conducted panchanama as per Ex.P.2 20 and then made arrangement for taking the dead body of the deceased to the hospital for post mortem examination and thereafter cremated the deceased. Further deposed that he has identified stone, gun which were stated to have been used by the accused.

20. Upon considering the cross-examination of PW.1, as the cross-examination was conducted on PW.1 by different two Advocates separately appearing for accused No.1 and by another Advocate for accused Nos.2 and 3. But nothing is revealed that he is telling lie before the court regarding the alleged incident. Further upon perusing the cross-examination of PW.1 it fortifies the case of the prosecution that the incident was occurred as it is stated in the complaint and as stated by PW.1. From the evidence of PW.1 it is proved that accused No.1 had taken out the gun MO.3 and set fire on the deceased and deceased fell on the ground and died on the spot and accused Nos.2 and 3 have assaulted the 21 complainant as well as PW.2 with stone and also have thrown the stone on the dead body of the deceased.

21. At this juncture, the learned counsel for the appellants/accused submitted that accused Nos.2 and 3 have not shared common intention along with accused No.1 to cause murder of the deceased and it is accused No.1 alone had set fire without sharing common intention with the accused Nos.2 and 3. Therefore, argued that sharing of common intention on the part of accused Nos.2 and 3 does not arise, therefore, the accused Nos.2 and 3 are not held liable for the offence under Section 304 Part I of IPC and at the most the offence against the accused Nos.2 and 3 is proved for the offence under Section 324 of IPC.

22. This submission of the counsel for the appellants/accused can be discussed later in succeeding paragraphs after assessing and evaluating the evidences of other eyewitnesses and other 22 circumstantial evidences whether to find out that the accused Nos.2 and 3 have shared common intention along with accused No.1 to commit the offence of culpable homicide amounting to murder.

23. PW.2 is the wife of PW.1 who had also sustained injuries at the hands of accused Nos.2 and 3 since accused Nos.2 and 3 have thrown the stone and assaulted PW.2. She has also given the evidence on the line of PW.1 regarding enmity occurred between them in regard to using of pathway between the accused and the complainant and all the accused came to the spot and have picked up quarrel and accused No.1 had returned to the house and took the gun and set fire at the deceased and then accused Nos.2 and 3 have thrown the stones on the deceased.

24. Upon considering the evidence of PW.2 nothing is found that her evidence is found to be dis- believable. Therefore, evidence of PW.2 is found to be 23 believable that what she has deposed is found to be true that the accused No.1 had set fire on the deceased - Sharanappa and accused Nos.2 and 3 have assaulted the PW.1 and PW.2 with stone and therefore the PWs.1 and 2 have sustained injuries at the hands of accused Nos.2 and 3.

25. PW.3 is the another eyewitness to the incident who is the wife of the deceased. She has deposed that since there is a dispute in regard to the pathway. Therefore there was enmity and on the night at 9.30 p.m. the accused were assaulting PW.1 and upon hearing the scream of PW.1, complainant, her husband, deceased Shranappa went to the spot and saw that accused Nos.2 and 3 have assaulted PW.1 with stone and at that time her husband deceased had asked to accused Nos.2 and 3 why they were assaulting the complainant and at that time the accused No.1 said that he would finish him and had brought gun from his 24 house and set fire on the deceased and also deposed that they would kill others also. Upon considering the cross-examination of PW.3 nothing is elicited to say that this witness is telling lie before the court. PW.3 deposed that she has witnessed the incident. Therefore, the evidence of PW.3 proves the alleged offence as against the appellants/accused.

26. PW.5 is the another eyewitness to the incident who also stated the same evidence as that of PWs.1, 2 and 3 that the accused Nos.2 and 3 have assaulted with stone to PW.1 complainant and his wife PW.2 and accused No.1 had set fire towards the deceased and it was hit to the chest of the deceased and deceased fell on the ground and died on the spot.

27. PW.7 is another eyewitness to the incident who had also stated in the same line of PWs.1, 2, 3, and 5 and stated that there was enmity between the accused and the complainant and accused Nos.2 and 3 have 25 thrown the stone on the complainant and by going over the spot there was an assault on the complainant with stone and it was objected by the deceased and then accused No.1 had taken out the gun from his house and set fire on the deceased and deceased fell on the ground and died on the spot. Upon considering the cross- examination nothing is revealed that this witness is telling lie before the court.

28. PW.11 is the son of the deceased who had also stated the evidence as same as that of the witnesses as above discussed. This PW.11 had stated that accused Nos.2 and 3 have hit the complainant and his father with stone and the accused No.1 set gun fire to the chest of his father-deceased and the deceased fell on the ground and died on the spot. Considering the cross-examination of this witness nothing is found that this witness is telling lie before the court. 26

29. Therefore from the evidences of PWs.1, 2, 3, 5, 7 and 11 as above stated it is proved that all the accused have developed animosity with the complainant and the deceased regarding using of pathway which is situated in front of house of the complainant and on the fateful day at night 9.30 p.m. all the accused came in front of the house of the complainant by using the said pathway and accused Nos.2 and 3 thrown stone on the complainant and also hit with stone to the PW.1 and it was heard by the deceased and his wife and others as discussed above and the deceased had objected the accused why assaulting the complainant and then accused No.1 had taken out gun from his house and set fire on the chest of the deceased and deceased fell down on the ground and died on the spot and all these factors have been proved from the evidences as discussed above.

30. The prosecution has also gone through the other circumstantial evidences, PW.10 who is stated to be hearsay witness and he came to know that he had heard that the accused No.2 had gun fired on the deceased and deceased died on the spot and accused Nos.2 and 3 have assaulted with stone.

31. PW.16 is the Doctor who has conducted the post mortem examination on the dead body of the deceased and stated that upon examination of the dead body he has found the external appearance and injures as stated below ;-

"(I) External appearance :

1) Condition of subject stout, emaciated, decomposed etc.;

2) Wounds; position, size, character.

3) Bruises, position size, nature;

4) Mark of ligatures neck, dissection, etc.,...

Moderately built and nourished aged about 40 years, eyes closed mouth partially opened rigor mortis normal off in upper limbs height 5'-7" hydrocele right. 28

A lacerated wounded on the anterior part of neck on let side just above the color bone 5x2x2 cm irregular margin (not clear) breaking of anterior of neck front upper 1/3rd cheek present. All neck muscles left side neck contused and lacerated great vessels of neck on left side ruptured and about 5x5 c.m. width big blood clot present in the wound. Wound is caused by fire arm.

32. Further PW.16 had stated that the time since death is approximately 12-24 hours from the time of conducting post mortem examination. It is the evidence deposed by PW.16 that the cause of death is due to shock and haemorrhage due to the injuries to greet caused of lungs in right side. Accordingly, he has given post mortem report as per Ex.P.11. The cross- examination of PW.16 is considered nothing is revealed that the post mortem conduced on the dead body of the deceased is found to be in unnatural. There is no suggestion in the course of cross-examination that this PW.16 is having intimacy with the deceased. From the 29 evidence of PW.16 it is revealed that Doctor - PW.16 had conducted post mortem examination on the dead body of the deceased and accordingly issued post mortem report as per Ex.P.11. Therefore, the evidence of PW.16 is found to be trustworthy, believable so far as conducting post mortem examination and issuance of report as per Ex.P.11 and the evidence of PW.16 coupled with the evidences of eyewitnesses as above stated that the death of the decease is proved to be culpable homicide.

33. The Sessions Court had opined that though it is proved that death is culpable homicide but not amounting to murder on the ground that in the night 9.30 p.m., the quarrel was taken place in sudden spur of moment and it was a quarrel as usual occurred in the village area in regard to pathway existed in between the houses or as if the quarrel taken place in respect of bund in between the lands and at that moment accused 30 No.1 suddenly got angry and had taken out his gun from his house and set fire towards the deceased. Hence, opined that this was not premeditated in the mind of the accused and also accused did not have intention to kill the deceased but when the incident occurred in a spur of moment. Therefore, had taken the case into exception of Section 300 of IPC and came to conclusion that the killing of the deceased is culpable homicide but not amounting to murder and accordingly held the guilty of the offence under Section 304 Part I of IPC instead of convicting the accused under Section 302 of IPC. Against this holding of Sessions Court convicting the accused under Section 304 Part I with aid of Section 34 of IPC the State has not preferred the appeal and accepted the conviction recorded that the appellants/accused are guilty of the offence under Section 304 Part I read with Section 34 of IPC. 31

34. From considering the other circumstantial witnesses from the evidence of PW.6 - Engineer who had given sketch of place of incident; PW.17 - Engineer who has given the report as per Ex.P.15 that there was light on the day and time of the incident as it was witnessed by the eyewitnesses as above discussed and the registration of crime by PW.18 PSI as per Ex.P.1 as lodged by PW.1 which is the genesis of the occurrence and coupled with the evidence of PW.15-Police Inspector who had conducted investigation and filed charge sheet. All these facts prove that the appellants/accused have caused the death of the deceased and the accused No.1 had fired from his gun on the chest of the deceased and due to which the deceased died on the spot and accused Nos.2 and 3 have assaulted the complainant - PW.1, PW.2 and deceased with stone and also thrown the stone on the dead body of the deceased.

35. But the learned counsel for the appellants/accused submitted that the Sessions Court had convicted the appellants/accused for the offences under Sections 324, 304 Part I read with Section 34 of IPC and also Section 25 of the Arms Act.

36. Further, he submitted that the accused Nos.2 and 3 did not share the common intention along with accused No.1 in furtherance of commission of killing the deceased and therefore the accused Nos.2 and 3 are only held liable for the offence under Section 324 of IPC without the aid of Section 34 of IPC.

37. The learned counsel for the appellants/accused submitted with reference to the witnesses PWs.1, 2, 3, 5, 7 and 11 that all the witnesses have stated that the appellants/accused have come to the spot with bare hands and without holding any weapon at initial point of time and accused Nos.2 and 3 have thrown the stone and assaulted on PWs.1, 2 and 33 when this quarrel was being taken place then the accused No.1 had returned to the house which is 40-50 feet away from the house of the complainant and had taken the gun from his house and suddenly targeted towards the deceased and fired gunshot towards the deceased.

38. Therefore, argued that when all these witnesses have stated the evidences in this fashion it is proved that accused Nos.2 and 3 did not share common intention along with accused No.1 who had fired gunshot to the deceased. Hence, the accused No.1 alone is held responsible for cause of the death of the deceased but not accused Nos.2 and 3.

39. Further submitted that if at all, the accused have shared common intention to kill either the deceased or the complainant then they should have brought weapon or gun prior to coming to the place of incident to pick-up quarrel with the complainant. But 34 while accused Nos.1 to 3 came to the place of incident they were with bare hands and at the most accused Nos.2 and 3 have used stone which were found on the place of incident and used for commission of offence and then the accused No.1 returned to the house and took out gun and set fire, which shows that the accused Nos.2 and 3 have not shared common intention along with accused No.1. Therefore, submitted that accused No.1 alone at most is held guilty of the offence under Section 304 Part I of IPC and at most accused No.2 and 3 are also held guilty of the offence under Section 324 of IPC. Therefore, prayed for acquittal of accused Nos.2 and 3 for the offence under Section 304 Part I of IPC.

40. In this regard the learned counsel for the appellants/accused relied on the judgment of the Hon'ble Apex Court in the case of Virendra Singh stated supra and read out the principle of law laid down therein at paras 38 and 39, which are follows :- 35

"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 pre-arranged 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, then, the one originally designed, during execution of the original plan, should be clear and cogent."

41. Therefore, the learned counsel for the appellants had stated that there was no prearranged plan between accused Nos.1 to 3 to commit death of the 36 deceased and the element of sharing common intention among the accused is absent in the present case. Therefore, argued that based on the above cited decision of the Hon'ble Apex Court that convicting the accused Nos.2 and 3 for the offence under Section 304 Part I of IPC is not correct.

42. To attract Section 34 of IPC, two postulates are indispensable :-

i) The criminal act (consisting of a serious of acts) should have been done, not by one person, but by more than one person;

ii) Doing of every such individual act cumulatively resulting in the commission of criminal offences should have been in furtherance of the common intention of all such persons.

43. Therefore, the true concept of Section 34 of IPC is that if two or more persons intentionally doing an 37 act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in crime is the essential element for application of this section and in the absence of such common intention, the section has no application. It is not necessary that the acts of this every persons charged with commission of an offence jointly, must be the same or identical 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. At the same time, if participation of accused in crime is proved but common intention was found absent then Section 34 of IPC cannot be invoked. Therefore under these principle of law as laid down by the Hon'ble Apex Court in catena of decisions the factual matrix involved in the present case as submitted by the learned counsel for the appellants/accused that 38 sharing of common intention by the accused Nos.2 and 3 is absent or not herein is to be considered.

44. The learned counsel for the appellants mainly relied on the evidences of eyewitnesses as above discussed that the accused Nos.2 and 3 have used stone which were picked-up from the place of incident itself and used to assault the complainant as well as the deceased and PW.2. At the most the accused No.1 also present but with bare hands then accused No.1 returned to the house which is 40-50 feet away from the place of incident and had taken out the gun and then set fire on the deceased and therefore under this background of the evidences of eyewitnesses as discussed above, it is argued that the accused No.1 alone is responsible and there was no premeditating in the mind of appellants/accused that they have shared common intention by using such weapon to commit the offences as alleged.

45. It is always difficult to gather the common intention or to infer the element of common intention from the target witnesses but the animosity developed, the motive, the intention, participation of crime, commission of overtact by each accused and then the resultant act are all these to be considered to elicit whether sharing of common intention or not, by some of the accused in where the crime is occurred by every persons.

46. The common intention may be because of prearrangement by means between all the accused persons before actual commission of offence or the common intention may develop suddenly on the spot during the progress of the crime. Considering the present case the evidence of the eyewitnesses as discussed above are to be considered to the aspect whether the common intention was prearranged/shared prior to the incident or developed on the spot during the 40 progress of the crime. Admittedly, when at first time all the accused came over to the spot and had taken quarrel at that time the accused No.1 was not holding gun and then, when the crime was in progress that means quarrel was in progress and accused Nos.2 and 3 have assaulted the complainant - PW.1, PW.2 and also the deceased with stone then at that moment the accused No.1 returned to the house which is 40-50 feet away from the place of incident and took out gun and set fire on the chest of the deceased. Therefore, under these factual matrix and evidences adduced by these witnesses it is to be elicited whether the common intention is developed on the spot during progression of crime or whether there is sharing of common intention by accused Nos.2 and 3 with accused No.1 in furtherance of commission of offence of murder of the deceased. In this regard, I place reliance on the judgment of the Hon'ble Apex Court in the case of 41 Suresh Sakharam Nangare v. State of Maharashtra [(2012) 9 Supreme Court Cases 249], wherein their lordships were pleased to observe as follows ;-

"21. Since the conviction of the appellant is based only with the aid of Section 34 of IPC, it is useful to refer the same:

"34. 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."

A reading of the above provision makes it clear that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a pre- arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds."

47. Further the Hon'ble Apex Court in the case of Shyamal Ghose v. State of West Bengal [(2012) 7 42 Supreme Court Cases 646], wherein their lordships were pleased to observe as follows ;-

"84. Lastly, it was contended that the provisions of Section 34 IPC are not attracted in the present case as the prosecution has not been able to prove either common intention or participation of the accused persons in the commission of the crime. Resultantly, they could not have been held guilty of the offence under Section 302 read with Section 34 IPC. Before we discuss the evidence relevant to this aspect of the case, let us examine the law in relation to ingredients and application of Section 34 IPC.

85.. In a very recent judgment of this court in the case Nand Kishore v. State of Madhya Pradesh [(2011) 12 SCC 120], this Court discussed the ambit and scope of Section 34 IPC as well as its applicability to a given case as under /SCC pp.126-28, para 20-26) "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 43 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 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 44 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, like in the present case Mahavir, all alone and unarmed went to demand money from Mahesh but Mahesh, Dinesh and Nand Kishore got together outside their house and as is evident from the statements of the witnesses, they not only became aggressive but also committed a crime and went to the extent of stabbing him over and over again at most vital parts of the body puncturing both the heart and the lung as well as pelting stones at him even when he fell on the ground. But for their participation and a clear frame of mind to kill the deceased, Dinesh probably would not have been able to kill Mahavir. The role attributable to each one of them, thus, clearly demonstrates common intention and common participation to achieve the object of killing the deceased. In other words, the criminal act was done with the common intention to kill the deceased Mahavir. The trial court has rightly noticed in its judgment that all the accused persons coming together in the night time and giving such serious blows and injuries with active participation shows a common intention to 45 murder the deceased. In these circumstances, the conclusions arrived at by the trial court and the High Court would not call for any interference.

24. The learned counsel appearing for the appellant had relied upon the judgment of this Court in Shivalingappa Kallayanappa v. State of Karnataka (1994 Supp (3) 235) to contend that they could not be charged or convicted for an offence under Section 302 with the aid of Section 34 IPC. The said judgment has rightly been distinguished by the High Court in the judgment under appeal. In that case, the Supreme Court had considered the role of each individual and recorded a finding that there was no common object on the part of the accused to commit murder. In that case, the Court was primarily concerned with the common object falling within the ambit of Section 149 IPC. In fact, Section 34 IPC has not even been referred to in the afore referred judgment of this Court.

25. Another case to which attention of this Court was invited is Jai Bhagwan v. State of Haryana ((1999) 3 SCC 102). In that case also, the Court had discussed the scope of Section 34 IPC and held that common intention and participation of the accused in commission of the offence are the ingredients which should be satisfied before a person could be convicted with the aid of Section 34 IPC. The Court held as under: (SCC p. 107, para 10) '10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual 46 accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.'

26. The facts of the present case examined in the light of the above principles do not leave any doubt in our minds that all the three accused had a common intention in commission of this brutal crime. Each one of them participated though the vital blows were given by Dinesh Dhimar. But for Mahesh catching hold of the arms of the deceased, probably the death could have been avoided. Nand Kishore showed no mercy and continued pelting stones on the deceased even when he collapsed to the ground. The prosecution has been able to establish the charge beyond reasonable doubt."

86. In the case of Lallan Rai and Others v. State of Bihar [(2003) 1 SCC 268], this Court noticed the dominant feature for attracting the applicability of Section 34 IPC and dealt with the case where the contention was that several persons may have similar intention, yet they may not have common intention in furtherance to which they participated in an action. The court noticed as under (scc PP.275-77, PARA 17-22) "17. In para 44 of the judgment in Suresh this Court (the majority view) stated: (SCC pp. 689-90) '44. Approving the judgments of the Privy Council in Barendra Kumar Ghosh v. King Emperor, ((1924-25) 52 IA 40) and Mahbub Shah 47 v. King Emperor, ((1944-45) 72 IA 148) cases a three-Judge Bench of this Court in Pandurang v. State of Hyderabad (AIR 1955 SC 216) held that to attract the applicability of Section 34 of the Code the prosecution is under an obligation to establish that there existed a common intention which 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 all. This Court had in mind the ultimate act done in furtherance of the common intention. In the absence of a pre-arranged plan and thus a common intention even if several persons simultaneously attack a man and each one of them by having his individual 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. 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 or the other. The Court emphasised the sharing of the common intention and not the individual acts of the persons constituting the crime. Even at the cost of repetition it has to be emphasised that for proving the common intention it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and 'incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis'. Common intention, arising at any time prior to the criminal act, as contemplated under Section 34 of the Code, can thus be proved by circumstantial evidence.'"

18. In Suresh v. State of U.P., (2001) 3 SCC

673) this Court while recording the dominant 48 feature for attracting Section 34 has the following to state: (SCC p. 686, para 39) "39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as 'the Code') is the element of participation in absence resulting in the ultimate 'criminal act'. The 'act' referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous."

19. For true and correct appreciation of legislative intent in the matter of engrafting of Section 34 in the statute-book, one needs to have a look into the provision and as such Section 34 is set out as below:

"34. 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."

20. A plain look at the statute reveals that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result. It is trite to record that such consensus can be developed at the spot. The observations above obtain support from the decision of this Court 49 in Ramaswami Ayyangar v. State of T.N.((1976) 3 SCC 779).

21. In a similar vein the Privy Council in Barendra Kumar Ghosh v. King Emperor((1924-

25) 52 IA 40) stated the true purport of Section 34 as below: (AIR p. 6) '[T]he words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, 'act' includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally cooperates 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.- John Milton , "On his blindness" (1655)."

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 therefore."

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 and Others [(2010) 7 SCC 759], it is clear that Section 34 IPC applies where two or more accused are 50 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 at the spur of moment between a number of persons with reference to the facts of a given case.

88. The ingredients of more than two persons being present, existence of common intention and commission of an overt act stand established in the present case. The statements of the witnesses clearly show that all the eight accused were present at the scene of occurrence. They had demanded money and extended threat of dire consequences, if their demand was not satisfied. Thereafter, they had altercation with the deceased and the deceased was strangulated by the accused persons and then his body was disposed of by cutting it into pieces and packing the same in gunny bags and abandoning the same at a deserted place near the Barrackpore Dum Dum Highway. Thus, all these acts obviously were in furtherance to the common intention of doing away with the deceased, if he failed to give them Rs.40,000/- as demanded. The offence was committed with common intention and collective participation. The various 51 acts were performed by different accused in presence of each one of them. In other words, each of the accused had common intention. Thus, we find that the argument on the application of Section 34 IPC advanced on behalf of the accused is without any substance.""

48. Further the Hon'ble Apex Court in the case of Thoti Manohar v. State of Andhra Pradesh [(2012) 7 Supreme Court Cases 723], wherein at paras 41 to 45, their lordships were pleased to observe as follows ;-

"41. In Ram Tahal and others v. The State of U.P.[(1072) 1 SCC 136], while dealing with the applicability of Section 34 of the IPC, a two-Judge Bench observed /SCC p.140, para 5) "5. ... There is no doubt that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though it is difficult in most cases to prove the intention of an individual [yet] it has to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct subsequent to the commission of the offence, for instance, that all of them had left the scene of the incident together, and other acts which all or some may have done 52 as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted."

43. In Rajesh Govind Jagesha v. State of Maharashtra [(1999) 8 SCC 428] a two-Judge Bench has held that : (SCC p.432, para 7) "7. ...the existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention, even the participation in the commission of the offence need not be proved in all cases."

44. In Bishna v. State of W.B. [(2005) 12 SCC 657, it has been held that for the purpose of attracting Section 34 of the IPC, specific overt act on the part of the accused is not necessary. He may even wait and watch. Inaction on the part of an accused may sometime go a long way to achieve a common intention or an object with others.

45. In Manik Das and others v. State of Assam [(2007) 11 SCC 403], it has been held as follows: (SCC p.406, para 7) "7. ...'20. The Section does not say "the common intention of all", nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it 53 means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899). Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.'(As observed in Anil Sharma v. State of Jharkhand [*(2004) 5 SCC 679, pp.687-88, para 20.]""

49. Further the Hon'ble Apex Court in the case of Nand Kishore v. State of Madhya Pradesh [(2011) 12 Supreme Court Cases 120] wherein their lordships were pleased to observe as follows "18. Now, we would examine whether the conviction of the appellant under Section 302 with the aid of Section 34 by the courts is sustainable in law or not. For the application of Section 34 IPC, it is difficult to state any hard and fast rule which can be applied universally to all cases. It will always depend upon the facts and circumstances of the given case whether the persons involved in the commission of the crime with a common intention can be held guilty of the main offence committed by them together.

Provisions of Section 34 IPC come to the aid of law while dealing with cases of criminal offence committed by a group of persons with common intention.

Section 34 reads as under :

"34. 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."

"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 is 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 criminal act and common intentions 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 55 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 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 co-incidental 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 alias Sukhdev Singh 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 pre- determined plan to commit such an offence. This will always depend on the facts and circumstances of the case, like in the present case Mahavir, all alone and unarmed went to demand money from Mahesh but Mahesh, Dinesh and Nand Kishore got together outside their house and as is evident from the statement of the witnesses, they not only became aggressive but also committed a crime and went to the extent of stabbing him over and over again at most vital parts of the body puncturing both the heart and the lung as well as pelting stones at him even when he fell on the ground. But for their participation and a clear frame of mind to kill the deceased, Dinesh probably would not have been able to kill Mahavir. The role attributable to each one of them, thus, clearly demonstrates common intention and common participation to achieve the object of killing the deceased. In other words, the criminal act was done with the common intention to kill the deceased Mahavir. The trial court has rightly noticed in its judgment that all the accused persons coming together in the night time and giving such serious blows and injuries with active participation shows a common intention to murder the deceased. In these circumstances, the conclusions arrived at by the trial Court and the High Court would not call for any interference.

24. The learned counsel appearing for the appellant had relied upon the judgment of this Court in the case of Shivalingappa Kallayanappa & Ors. v. State of Karnataka [1994 Supp. (3) SCC 235] to contend that they could not be charged or 57 convicted for an offence under Section 302 with the aid of Section 34 IPC. The said judgment has rightly been distinguished by the High Court in the judgment under appeal. In that case, the Supreme Court had considered the role of each individual and recorded a finding that there was no common object on the part of the accused to commit murder. In that case, the court was primarily concerned with the common object falling within the ambit of Section 149, IPC. In fact, Section 34 IPC has not even been referred to in the afore-referred judgment of this Court.

25. Another case to which attention of this Court was invited is Jai Bhagwan & Ors. v. State of Haryana [(1999) 3 SCC 102]. In that case also, the Court had discussed the scope of Section 34 IPC and held that common intention and participation of the accused in commission of the offence are the ingredients which should be satisfied before a person could be convicted with the aid of Section 34 IPC. The Court held as under: (SCC p.107, para 10):

"10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.""

50. Further, I place reliance on the judgment of the Hon'ble Apex Court in the case of Jai Bhagwan and others v. State of Haryana [(1999) 3 Supreme Court Cases 102], wherein their lordships were pleased to observe as follows "10. To apply Section 34, IPC apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In every case it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case."

51. Therefore, in this background of principle of law as held by Hon'ble Apex Court, now let me consider only on the aspect whether there is any sharing of common intention of the accused Nos.2 and 3 along with accused No.1 since the accused No.1 had come 59 along with accused Nos.2 and 3 and all these three accused have gone to the spot initially with bare hands and then accused Nos.2 and 3 have picked-up stone and used for the commission of the offence by assaulting the complainant - PW.1, PW.2 and the deceased but while crime was in progress the accused No.1 returned to the house and had taken out the gun then set fire towards deceased. Therefore, this act of accused itself in the acts between accused No.1 on the one hand and the accused Nos.2 and 3 on the other hand, whether constitutes sharing of common intention by the accused No.2 and 3 along with accused No.1 to commit the murder of the deceased and on this limited aspect evidences of PWs.1, 2, 3, 5, 7 and 11 are to be considered. All these witnesses have stated in their evidences that initially the accused Nos.2 and 3 have assaulted with stone and there is no evidence from these witnesses that the accused No.1 had also 60 assaulted with stone. It is the evidence of these witnesses that when crime was in progress the accused No.1 returned to the house and taken out gun from the house and then targetted the deceased and accused No.1 fired gunshot on the chest of the deceased and deceased died on the spot. All these witnesses have deposed that when the crime was in progress which was only when progress of hitting with stone at that moment the accused No.1 returned to the house and took up gun from the house and used for commission of offence.

52. While considering these aspects, I have also relied on the principle of law laid down by the Hon'ble Apex Court in the case of Dukhmochan Pandey and others v. State of Bihar [(1997) 8 Supreme Court Cases 405] wherein it is held that common intention can be formed previously or on the spot during the progress of the crime. However the common intention 61 formed at the later stage is distinct from similar intention actuating several persons simultaneously.

53. Further this court had followed the principle of law laid down by the Hon'ble Apex Court in the case of Rajesh Govind Jagesha v. State of Maharashtra [(1999) 8 Supreme Court Cases 428], wherein their lordships were pleased to observe as follows ;-

"7. We are also not impressed with the submission of the learned counsel appearing for the appellants that the PWs 1 and 2 are not reliable being interested and chance witnesses. Both the Courts below have held and we agree with their finding that the said witnesses were eye-witnesses who had seen the occurrence in which Joy Kutty was murdered. Mr. Nambiar, the learned Senior Advocate appearing for Accused No. 1 further submitted that as a common object was not established, the Trial Court committed a mistake of law by applying the provisions of Section 34 of the IPC in holding the appellants guilty of the crime. Section 34 and Section 149 of the IPC are distinct and distinguishable. The meaning and scope of common intention and common object has properly been understood by the Trial Court as well as the High Court. No pre- meditation or previous meeting of mind is necessary for the applicability of Section 34 of the IPC. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct 62 evidence of common intention is necessary. For the purposes of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. The circumstances of the present case clearly show that the accused persons had come on spot with deadly weapons and inflicted injuries on Joy Kutty, obviously with the intention of causing his death. The eye-witnesses ran from the spot to save their lives. We do not find any error of law in appreciation of evidence by the Trial Court as well as the High Court, so far as the accused persons other than Accused No. 2 are concerned."

54. Further in the case of Dani Singh and others v. State of Bihar [(2004) 13 Supreme Court Cases 203], wherein their lordships were pleased to observe as follows :-

"20. "Common intention" implies pre- arranged plan and acting in concert pursuant to the pre-arranged plan. 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 offence showing a pre-arranged 63 plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra (AIR 1963 SC 1413). In Amrit Singh and Ors. v. State of Punjab (1972 Crl.L.J. 465) it has been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing 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. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Magsogdan and Ors. v. State of U.P. (AIR 1988 SC 126) it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Barma and Ors. v. The State of Assam (AIR 1977 SC 2252) it was observed that prosecution must prove facts to justify an inference that all participants of the 64 acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him (See Malkhan and Anr. v. State of Uttar Pradesh (AIR 1975 SC 12). In the Oxford English Dictionary, the word "furtherance" is defined as "action of helping forward". Adopting this definition, Russel says that "it 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. (Russell on Crime 12th Edn.

Vol.I pp.487 and 488). In Shankarlal Kacharabhai and Ors. v. The State of Gujarat (AIR 1965 SC 1260) this Court has interpreted the word "furtherance" as "advancement or promotion"."

55. Considering the factual matrix involved in the above cited decisions as stated supra and considering the factual matrix involved in the present case while applying the principle of law laid down therein application of Section 34 of IPC so far as accused No.2 and 3 are concerned as discussed above initially the accused Nos.1 to 3 had come to the spot 65 with bare hands and at that moment the accused No.1 did not hold gun in his hand and from the evidence it is revealed that accused No.2 thrown the stone on the complainant and upon hearing the scream the deceased came to the spot and accused No.3 had assaulted the complainant as well as deceased for this time the accused Nos.2 and 3 have used only stone and did not hold any other weapons and did not go to the spot by holding any other weapon, there was enmity between them in regard to pathway is in existence infront of the house of the complainant. The pathway is not existed in front of the house of the deceased, the deceased came to the spot upon hearing the scream of the complainant PW.1, when it was objected by the deceased that the accused No.3 where assaulting with stone and uttering the words they would kill them but at that moment the accused No.1 alone returned to the house and brought the gun and set fire on the chest of the deceased. 66 Therefore, the facts from the evidences stated above are gathered that the appellants/accused Nos.1 to 3 have come to the spot just for taking quarrel with the complainant and it is proved that there is no prearranged plan in between all the accused to kill the deceased by holding weapons and came to the spot. Therefore, these circumstances proves that there is no sharing of common intention by the accused Nos.2 and 3 with accused No.1. When accused Nos.2 and 3 have hit the deceased with stone at that time the accused No.1 did not hold gun on his hand but few minutes of the quarrel accused No.1 went to his house and took up gun and then set gunshot towards the deceased. When the animosity between the accused is with the complainant (PW.1) that the accused were using pathway which is in front of house of the complainant (PW.1) and which was objected by PW.1 upon hearing the scream of the complainant (PW.1) the deceased 67 came to the spot. Therefore, the target of the accused is not on the deceased to take quarrel but to take quarrel with PW.1 and also from the evidences above discussed it is not proved that there is premeditation or there is a conspiracy or there is sharing of common intention among all the three accused in furtherance of commission of offence of killing the deceased. In the present case when the evidences of above stated eyewitnesses are carefully considered therefore, it is proved that even though all the three accused have come to the spot with bare hands and accused Nos.2 and 3 did not know that the accused No.1 was having intention to kill the deceased with gun when the crime was in progress and thereafter the accused No.1 went to the house and took the gun from his house and set fire towards the deceased.

56. Therefore, upon careful consideration of these evidences revealed from the witnesses as above 68 discussed it is not proved that the accused Nos.2 and 3 have also shared common intention along with accused No.1 in furtherance of commission of offence of killing the deceased. Therefore, under these circumstances, the accused No.1 alone is guilty of the offence under Section 304 Part I of IPC and Section 25 of the Arms Act, 1959 whereas the accused Nos.2 and 3 are not liable to be convicted for the offence under Section 304 Part I of IPC and under Section 25 of the Arms Act and at the most since accused Nos.2 and 3 have assaulted with stone, therefore, the accused Nos.2 and 3 are liable to be held for the offence under Section 324 of IPC. Therefore, upon careful analyses of the evidences on record and in the background of the principle of law laid down by the Hon'ble Apex Court stated supra, I am of the opinion that the accused No.1 alone is liable to be convicted for the offence under Section 304 Part I of IPC and under Section 25 of the Arms Act, 1959 and 69 accused Nos.2 and 3 are liable to be convicted for the offence under Section 324 of IPC only and accused Nos.2 and 3 are liable to be acquitted from the charges levelled under Section 304 Part I read with Section 34 of IPC.

57. The Sessions Court has convicted the appellants/accused Nos.2 and 3 for the offence under Section 324 of IPC and sentence imposed for this offence is to undergo simple imprisonment for a period of one year and to pay fine of Rs.5,000/- each. Even though the respondent/State has not preferred the appeal for seeking enhancement of the sentence, but considering the over all facts and circumstances involved in the case as discussed above the appellants/accused Nos.2 and 3 are acquitted for the offence under Section 304 Part I of IPC but at the same time in the present case death of the deceased is occurred when quarrel was taken place and the 70 appellants/accused Nos.2 and 3 were very much present. The appellants/accused Nos.2 and 3 are acquitted for the offence under Section 304 Part I of IPC for the reason that the prosecution evidences lacks proving of sharing of common intention by appellants/accused Nos.2 and 3 with appellant/accused No.1. Therefore, on these circumstances, the appellants/accused Nos.2 and 3 are only liable for conviction for the offence under Section 324 of IPC and accordingly the conviction so far as this offence is concerned is upheld. Therefore, considering the present case where the death of the deceased occurred and also it is proved that the appellants/accused Nos.2 and 3 are liable for conviction for the offence under Section 324 of IPC but the sentence awarded by the Sessions Court for this offence is very less of imposing the simple imprisonment for a period of one year only, therefore, it is needed to be 71 enhanced so far as appellants/accused Nos.2 and 3 are concerned. Since the State has not preferred appeal and the Sessions Court has awarded sentence of simple imprisonment for a period of one year only for the offence under Section 324 of IPC and considering the death of the deceased occurred in the said incident and for the offence under Section 324 of IPC the maximum punishment to be imposed is three years of imprisonment and therefore considering these mitigating factors this court by exercising its power under Section 482 of Cr.P.C to secure the ends of justice the sentence awarded by the Sessions Court by imposing simple imprisonment for one year is modified and enhanced to the extent that the appellants/accused Nos.2 and 3 shall suffer simple imprisonment for a period of three years for the offence under Section 324 of IPC, as it is permissible to this extent for the offence under Section 324 of IPC. Therefore, for securing the 72 ends of justice as discussed above, the court hereby exercises its power under Section 482 of Cr.P.C. Accordingly, enhanced the quantum of punishment so far as appellants/accused Nos.2 and 3 are concerned making liable them to undergo simple imprisonment for a period of three years for the offence under Section 324 read with Section 34 of IPC and accordingly, it is awarded and modified. Therefore, in this regard, the judgment of conviction and order on sentence recorded insofar as accused Nos.2 and 3 concerned is liable to be modified. Hence, I pass the following :-

ORDER The appeal is partly allowed.

The judgment of conviction dated 03.02.2012 and order on sentence dated 08.02.2012 passed in Sessions Case No.101/2002 by the Court of the Presiding Officer, Fast Track Court-I, Gulbarga recorded so far as against accused No.1 convicting the 73 accused No.1 for the offence under Section 304 Part I of IPC and under Section 25 of the Indian Arms Act, 1989 is hereby confirmed along with quantum of sentence awarded by the Sessions Court.

The judgment of conviction and order on sentence recorded as against accused Nos.2 and 3 in the above stated judgment of conviction and order on sentence is modified to the effect that the accused Nos.2 and 3 are hereby acquitted from the charges leveled under Section 304 Part I of IPC and under Section 25 of the Indian Arms Act.

The accused Nos.2 and 3 are hereby convicted for the offences under Section 324 read with Section 34 of IPC (sharing of common intention between accused Nos.2 and 3 for assaulting) and accordingly awarded sentence to suffer rigorous imprisonment for a period of three years with fine of Rs.25,000/- each instead of 74 conviction under Section 304 Part I of IPC and Section 25 of the Arms Act.

Out of the said fine amount deposited by the accused Nos.2 and 3 an amount of Rs.40,000/- shall be paid to PW.3 who is the wife of the deceased as compensation. In default to pay the fine amount, accused Nos.2 and 3 shall further undergo simple imprisonment for a period of one year.

Registry is hereby directed to send back the trial court records.

Sd/-

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