ASIF KHAN versus STATE OF MAHARASHTRA & ANR.

ASIF KHAN

STATE OF MAHARASHTRA & ANR.

(Criminal Appeal Nos. 286-288 of 2019)

MARCH 05, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Penal Code, 1860:

s. 302 read with s. 34 – Murder – Common intention –Altercation between the parties after which accused no 1 and 2came back and returned after 10 minutes with deadly weapons-knife with blade of 15.5 cm, by which the victim was stabbed resultingin his death – Accused no. 2-appellant held the neck of the victimand accused no 1 stabbed the victim – Trial court convicted theaccused no. 1 and 2 for offences punishable u/s. 304 Part II rw s.34 and others were acquitted – However, the High Court convictedthe accused no. 1 and 2 u/s. 302 rw s. 34 – SLP by accused no. 1dismissed – Appeal by accused no. 2 – Held: Common intention ofthe accused nos.1 and 2 is fully established by the circumstancesand events unfolded in the prosecution story, duly corroborated bythe prosecution witnesses – It cannot be said that there was nomeeting of minds between accused nos.1 and 2, when they returnedwith weapon and stabbed the victim – Manner of incident alsoindicate that both had common intention, thus, the High Court didnot commit any error in convicting the accused no.2 u/s. 302/34.

Dismissing the appeals, the Court

HELD: 1.1 The High Court noticed that the accused Nos.1and 2 after the first incident went back on motorcycle and cameafter 10 minutes with deadly weapon, i.e., knife, which had bladeof 15.5 cm. There can be no doubt about the intention of theaccused, who held the neck of the deceased and accused No.1stabbed. PW5, doctor, who conducted the post-mortem provedin his evidence that the injury was sufficient in the normal courseto cause death. The submission of the appellant that injury wasnot on vital part cannot be accepted. The judgment of the HighCourt convicting the accused no. 1 u/s. 302 has already been

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Aupheld by dismissing the SLP on behalf of accused no. 1. Thus,there is no reason to take different view to one taken by theHigh Court that accused were liable for conviction u/s. 302.[Para 13, 14][894-F-G; 895-D]

1.2 The appellant submitted that there could be noBconviction under Section 34 for the appellant since there is noevidence of any pre-planned murder of deceased; and that in theFirst Information Report, it has mentioned that appellant had heldhands of the deceased and in the evidence before the court, itwas mentioned that appellant held the neck of the deceased. Allthe three eye-witnesses, PW1, PW2 and PW4, who appearedCbefore the court have stated that appellant caught hold of theneck of victim and accused No.1 assaulted him by knife.[Para 18][898-A-C]

1.3 Looking into the evidence in the instant case, it is clearthat common intention of the accused Nos.1 and 2 is fullyDestablished by the circumstances and events unfolded in theprosecution story, duly corroborated by PW1, PW2 and PW4. Afteraltercation took place between accused No.1 and informant, thedeceased-brother of informant, came and intervened in the matter,due to which the accused Nos.1 and 2 immediately returned fromthe spot in motorcycle and came back after 10 minutes armedEwith deadly weapon. When both the accused returned afteraltercation with two brothers-informant and deceased, and cameback after 10 minutes armed with weapon, common intention isclearly established and it cannot be said that there was no meetingof minds between accused Nos.1 and 2, when they returned withFweapon and stabbed the deceased. The accused No.2 held theneck of the deceased when accused No.1 stabbed him by knife.The manner of incident also indicate that both had commonintention, hence, the High Court did not commit any error inconvicting the accused No.2 under Section 302 read withSection 34. [Para 28][903-F-H; 904-A, B]GKulwant Rai v. State of Punjab (1981) 4 SCC 245;Ramesh Vithalrao Thakre and Another v. State ofMahrashtra (2009) 17 SCC 438; Surain Singh v. Stateof Punjab (2017) 5 SCC 796 – distinguished.

Mehbub Shah v. Emperor AIR 1945 PC 118;Pandurang and Others v. State of Hyderabad AIR 1955SC 216 : [1955] SCR 1083; Mohan Singh and Anr. v.State of Punjab AIR 1963 SC 174 : [1962] Suppl. SCR848; Narinder Singh and Another v. State of Punjab(2000) 4 SCC 603 : [2000] 2 SCR 1022; RajuPandurang Mahale v. State of Mahrashtra and Another(2004) 4 SCC 371 : [2004] 2 SCR 287 ; Murari Thakurand Another v. State of Bihar (2009) 16 SCC 256 :[2006] 10 Suppl. SCR 988 - referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 286-288 of 2019.

From the Judgment and Order dated 05.05.2014 of the High Courtof Judicature at Bombay, Aurangabad Bench in Criminal Appeal Nos.225 of 2012, 241 of 2012 and 461 of 2012.

Anurag Kishore, Abhishek Chaudhary, Adarsh Upadhayay,Harshavardhan Jha, Garvesh Kabara, S. P. Vishnu Prasath, Advs. forthe Appellant.

Nishant Ramakantrao Katneshwarkar, Anoop Kandari,Mohd. Parvez Dabas, Uzmi Jameel Husain, Shakil Ahmed Syed,Daanish Ahmad Syed, Advs. for the Respondents.

AThe Judgment of the Court was delivered by

ASHOK BHUSHAN, J.

1. These appeals have been filed against the judgment of the HighCourt dated 05.05.2014 dismissing the Criminal Appeals filed by theappellant and allowing the Criminal Appeals of the complainant as wellBas that of the State of Maharashtra.

2. As per the prosecution story on 21.10.2010 at about 8 AM inthe morning, the complainant was standing at Bazar Pati Chowk and hisbrother Sardarkha was standing at some distance. At that time, it wasalleged that all the accused came there and asked the complainant toCallow them to take water from the common well for one day due to loadshedding. Complainant refused to give excess water and asked theaccused to take water by rotation. At that time, they abused complainantand accused No.1, i.e. Nasibkha assaulted him. His brother Sardarkhawho was standing at some distance, intervened. Thereafter, the accusedNos.1 and 2, i.e., Nasibkha and Asifkha went to their house on motorcycleDand immediately returned. The accused No.1 challenged Sardarkha tostop him from drawing water. Sardarkha tried to convince him. AccusedNo.1 assaulted Sardarkha by knife on his right rib and accused No.2caught hold the neck of Sardarkha. The accused Nos. 3 and 4, i.e.,Jabbarkha and Ansarkha punched the complainant. Immediately afterEthe incidents, Sardarkha was taken to Ghati Hospital, Aurangabad byJeep and complainant and others followed him in another jeep. He wasadmitted in the hospital at about 10 AM, where the doctor declared himdead.

3. First Information Report was lodged on the same day underSections 302, 323, 504, and 506 read with Section 34 of the Indian PenalFCode against all the accused, who were named in the FIR. Accusedwere arrested on 22.10.2010. On 26.10.2010, accused No.1 gave amemorandum of statement under Section 27 of the Indian Evidence Actand in consequent to the said memorandum weapon was recovered.After completion of the investigation, charge sheet was filed under theGaforesaid sections.

4. All the accused were sent for trial. In the trial, complainantPW1 Kalekhan proved the prosecution case, other eye-witnesses - PW2Salimkha Abbaskha Pathan and PW4, Ajijkha Sardarkha also provedthe prosecution story, PW5, Dr. Navinkumar Varma proved the post-mortem report and PW6 and PW7 were panch witnesses. There wereH

other formal witnesses, who deposed before the trial court. The trialcourt, vide its judgment dated 29.02.2012, after discussing therole of each of the accused came to the following conclusion in ParagraphNo. 39:-

“39. There are four accused in the crime and as per thecase of the prosecution, they shared common intention tocommit offence. If the evidence of prosecution witnessesin this regard is perused, P.W.1, 2 and 4, who are eye-witnesses, categorically stated that accused No.2 caughthold the neck of Sardarkha and accused No.1 inflicted knifeblow on right rib. They have stated that accused Nos.3and 4 were present and they assaulted complainant by fistand blows. There is no evidence that accused Nos.3 and 4provoked accused Nos.1 and 2 to attack. There is noevidence of any prior concert or meeting of mind of accusedNos.3 and 4 in sharing common intention of accused Nos.1and 2. Before convicting accused with the aid of Section34 of Indian Penal Code, it has to be proved that there waspre-arranged plan to commit the offence………”

5. The trial court held that complicity of the accused Nos.1 and 2,i.e., accused Nasibkha and Asif Khan is established. The trial court,however, came to the conclusion that accused Nos.1 and 2 were notguilty of having committed offence under Section 302 read with 34 IPC,however, they can be convicted of having committed the offencepunishable under Section 304 Part II read with Section 34, the accusedNos.1 and 2 were sentenced to undergo imprisonment for 10 years andto pay fine of Rs.5,000/-. All the accused were acquitted of the offencepunishable under Sections 323, 504 and 506 read with Section 34 ofIndian Penal Code. Accused Nos. 3 and 4 were acquitted.

6. Against the judgment of the trial court dated 29.02.2012, accused,the complainant and the State filed appeals. Accused were aggrieved bytheir conviction under Section 304 Part II, the complainant and the Statewere aggrieved of acquittal of accused under Section 302 read withSection 34. The High Court after considering the entire evidence onrecord came to following conclusions in Paragraph No.23 and 30:-

“23. After analytical survey of the prosecution case, there is nodoubt in our mind that accused no. 2 Asifkha caught hold neck ofdeceased Sardarkha and thereupon accused no. 1 Nasibkha made

murderous assault by means of knife on deceased Sardarkha.Therefore, accused no. 1 Nasibkha and accused no. 2 Asifkhaare held to be guilty of homicidal death of deceased Sardarkha.

30. True it is, they were demanding water for one more day fromthe first informant, which was refused by him, thereby enragingBthem to hurl abuses and picked up quarrel with PW 1 Kalekha,which was intervened by the deceased. Refusal of giving waterfor one more day culminating into giving abuses to PW 1 Kalekhaand even quarrel with him, may be most natural, however, on theintervention of the deceased it was pacified. Not only that,consistent evidence of the prosecution shows that thereafter bothCaccused no. 1 Nasibkha and accused no. 2 Asifkha left the placeon motor cycle.They arrived at the spot after ten minutes. This period was enoughfor their cooling in respect of the first incident, however, theprosecution evidence shows that after ten minutes, they, not onlyDreturned to the spot, but they returned with deadly knife with them.This act on the part of accused nos. 1 and 2 clearly establishesthat with premeditation they returned to the spot. They returnedto the spot with specific intention. Further, from the evidence, itis clear that on reaching to the spot, they immediately caughtEdeceased Sardarkha and gave knife blow as per the role ascribedto them by the prosecution witnesses. This fact clearly establishesthat both the accused nos. 1 and 2 were nursing grudge againstthe deceased, because at the first instance it was the deceasedwho rescued PW 1 Kalekha from the quarrel with them.”

F7. The High Court did not approve the reasoning of the trial courtthat there was no intention of the accused to kill the deceased. The HighCourt allowed the appeals of the State and the complainant and convictedthe accused Nos.1 and 2 under Section 302 read with Section 34 IPC.The criminal appeals filed by the accused were dismissed. Acquittal ofaccused Nos.3 and 4 was confirmed. Aggrieved against the judgment ofGthe High Court, these appeals have been filed.

8. This Court heard the Special Leave Petition on 06.02.2015 anddismissed the Special Leave Petition qua petitioner No.1, i.e. Nasibkhan.Notice was issued in the Special Leave Petition insofar as petitionerNo.2, i.e., Asif Khan is concerned. These appeals, thus, are consideredHonly on behalf of Asif Khan.

9. Learned counsel for the appellant submits that an altercationtook place between the parties and consequent to that incident hashappened due to sudden fight between the parties and there was nointention on the part of the accused to kill the deceased. He submits thatat best the conviction could have been recorded only under Section 304Part II as has been held by the trial court. He further submits that withregard to appellant, in the First Information Report, although it is allegedthat appellant hold hands of the deceased but in the evidence, it is soughtto be stated that appellant held the neck of the deceased. Learned counselfor the appellant further submits that there could be no conviction underSection 34 for the appellant since there is no evidence of any pre-plannedmurder of deceased. Learned counsel for the appellant has placedreliance on judgments of this Court in Kulwant Rai Vs. State of Punjab,(1981) 4 SCC 245; Ramesh Vithalrao Thakre and Another Vs.State of Mahrashtra, (2009) 17 SCC 438 and Surain Singh Vs.State of Punjab, (2017) 5 SCC 796.

10. Learned counsel for the State refuting the submission of thecounsel for the appellant contends that High Court has rightly convictedthe appellant under Section 302 read with Section 34 as after the firstincident, when there was altercation between the parties, accused Nos.1and 2 went back on the motorcycle and returned after 10 minutes withdeadly weapon, i.e., knife, by which the deceased was stabbed. Theappellant held the neck of the deceased and accused No.1 stabbed thedeceased. The crime was committed by accused Nos.1 and 2 withcommon intention, hence they have been rightly convicted under Section302. It is submitted that present is not case for conviction under Section304 Part II, as the accused after first incident returned and came backwith deadly weapon and with intention to kill has stabbed the deceased.All the eye-witnesses have proved the prosecution case.

11. We have considered the submissions of the learned counselfor the parties and have perused the records.

12. The first submission of the learned counsel for the appellant isthat, at best, the present was case for conviction under Section 304part II and it was not case for conviction under Section 302. The HighCourt has elaborately considered the evidence to find out as to whetherconviction in the present case ought to have been under Section 302 orunder Section 304 Part II as held by the trial court. The consideration ofthe High Court in Paragraph Nos. 23 and 30 have already been extracted

Aabove. With regard to observation of trial court that it is not proved thataccused had intention to kill the deceased, the High Court held followingin Paragraph Nos.33 and 34:-

“33. In the present case, the learned trial court has observed in itsjudgment paragraph 43 and recorded finding that, there was anBintention on the part of accused nos. 1 and 2 to cause injury to thedeceased, however, the learned court below in one breath givesreasoning that, from the material on record, it does not appearthat the intention of the accused was to kill the deceased; however,in the next breath, the learned Judge reasoned that, accused no. 1was armed with knife, blade of which itself was 15.5 cm. in length,Cand therefore, the accused should have been aware that if hestabbed the deceased, he may be acting in such manner that theinjury he caused is likely to cause death, and still the learned courtbelow has acquitted accused nos. 1 and 2 under Section 302 ofthe Indian Penal Code.

D34. This appreciation on the part of learned court below, in ourview, is perverse. Once the intention is established, and in thelight of medical evidence and existence of the injury found on thedead body of Sardarkha, there is no escape but to record findingof guilt against the accused nos. 1 and 2 for having committed theoffence under Section 302 of the Indian Penal code.E

The learned counsel for accused nos. 1 and 2 found it very difficultand could not bring their case in any of the Exceptions of Section300 of the Indian Penal Code.”

13. High Court has also noticed that the accused Nos.1 and 2after the first incident went back on motorcycle and came afterF10 minutes with deadly weapon, i.e., knife, which had blade of15.5 cm. There can be no doubt about the intention of the accused, whoheld the neck of the deceased and accused No.1 stabbed. PW5,Dr. Naveenkumar Varma, who conducted the post-mortem proved inhis evidence that Injury No.17 was sufficient in the normal course toGcause death. Learned counsel for the appellant submitted that the injury,which was caused on right flank region in right hypochondric region wasnot on vital part. The High Court while considering the injury has madefollowing observations:-

“The said injury is mentioned at column 17 in the postmortemreport Exh. 56, duly proved by Dr. Navinkumar Varma (PW 5).According to column no. 20 of postmortem report Exh. 56, right9th rib cut from lower margin in 0.5 cm. area cut ends showsinfiltration staining.

The doctor also noted haematoma on right flank region aroundstab injury dark red in colour. Liver stab wound of 3 x 0.3 x 11cm. in right lobe of liver, which he mentioned in column no. 21 ofpostmortem report.

According to autopsy surgeon Dr. Varma, the cause of deathis, shock and haemorrhage due to stab injury to liver. The doctorfound that the injury was antemortem.”

14. The submission of the appellant that injury was not on vitalpart cannot be accepted. It is further to be noted that judgment of theHigh Court convicting the accused No.1 under Section 302 has alreadybeen upheld by dismissing the Special Leave Petition on 06.02.2015 onbehalf of Nasib Khan. We, thus, do not find any reason to take differentview to one taken by the High Court that accused were liable forconviction under Section 302. In Kulwant Rai (supra), one daggerblow was given in epigastrium area. This Court noted that there was noaltercation, there was no premeditation and the case was of hit andrun. In the above circumstances, the court held that it was case,which fall under Section 304 Part II, in paragraph No.3, following hasbeen held:-

“3. When the matter was before the High Court it was strenuouslyurged that in the circumstances of the case para 1 of Section 300would not be attracted because it cannot be said that the accusedhad the intention to commit murder of the deceased. In fact, thatis conceded. More often, suggestion is made that the case wouldbe covered by Para 3 of Section 300 of the Indian Penal Code inthat not only the accused intended to inflict that particular injurybut the injury intended to be inflicted was by objective medicaltest found to be sufficient in the ordinary course of nature to causedeath. The question is in the circumstance in which the offencecame to be committed, could it ever be said that the accusedintended to inflict that injury which proved to be fatal. To repeat,there was an altercation. There was no premeditation. It wassomething like hit and run. In such case, Para 3 of Section 300

Awould not be attracted because it cannot be said that the accusedintended to inflict that particular injury which was ultimately foundto have been inflicted. In the circumstances herein discussed, itwould appear that the accused inflicted an injury which he knewto be likely to cause death and the case would accordingly fallunder Section 304 Part II, Indian Penal Code.”B

15. The above case is clearly distinguishable since present is acase where accused Nos.1 and 2 after first incident, in which there wasaltercation with the informant and deceased, returned back on motorcycleand came back after 10 minutes alongwith weapon, hence the abovejudgment is not applicable. Coming to case relied on by appellant, i.e.,CRamesh Vithalrao Thakre (supra). In the above case, the accusedhad previous enmity with one Ashok and they have gone to inflict injuryon Ashok. Sister of Ashok, Rekha came in between and she receivedsingle injury on her chest. In the above circumstances, this Court heldthat case will fall under Section 304 Part II of IPC. In Paragraph Nos.D9 and 11, following has been held:-

“9. There is no denying the fact that one single injury was causedto the deceased by Ramesh when Rekha intervened to save herbrother Ashok from being assaulted. The primary target of Rameshwas Ashok, who got saved when Rekha received the injury onEher chest. After causing the single injury to Rekha, it is theprosecution case itself, that Ramesh did not cause any other injuryto Rekha nor even to Ashok, PW 1.

11. We, accordingly set aside the conviction and sentence ofRamesh for the offence under Sections 302/34 IPC and insteadFfind him guilty for the offence under Section 304 Pt. II IPC andsentence him to five years’ rigorous imprisonment and fine ofRs. 4000. In default of payment of fine, the appellant shall sufferrigorous imprisonment for period of one year. The fine shall bepaid within three months and on realisation shall be paid to themother of the deceased, PW 2, Janabai.”

16. The above case is clearly distinguishable since in that case,they had not gone to inflict injury on the deceased sister of Ashok ratherthey had gone to inflict injury on Ashok and since she intervened to saveher brother and got assaulted, it was not pre-planned. But, in the present

case accused Nos.1 and 2 after first incident, returned back on motorcycleand came back after 10 minutes alongwith weapon, hence the abovejudgment is not applicable. The third case relied by the learned counselfor the appellant Surain Singh (supra) was case where this Courtheld conviction under Section 304 Part II on the ground that attack wasnot premeditated and preplanned. In Paragraph Nos. 21 and 23, followinghas been held:-

“21. In the instant case, it is evident from the materials on recordthat there was bitter hostility between the warring factions to whichthe accused and the deceased belonged. Criminal litigation wasgoing on between these factions. It is also proved from the materialon record that the attack was not premeditated and preplanned.Both the parties were present in the Court of Executive Magistrate,Faridkot at the relevant time with regard to the proceedings underSections 107/151 of the Code. When the appellant-accusedobjected to the presence of member of the opposite side, thescuffle started between the parties which resulted into death oftwo persons. The conduct of the appellant-accused that he atonce took out his kirpan and started giving blows to the oppositeparty proves that the attack was not premeditated and it wasbecause of the spur of the moment and without any intention tocause death. The occasion for sudden fight must not only besudden but the party assaulted must be on an equal footing inpoint of defence, at least at the onset.

23. Thus, if there is intent and knowledge then the same would bea case of Section 304 Part I and if it is only case of knowledgeand not intention to cause murder and bodily injury then the samewould fall under Section 304 Part II. We are inclined to the viewthat in the facts and circumstances of the present case, it cannotbe said that the appellant-accused had any intention of causingthe death of the deceased when he committed the act in question.The incident took place out of grave and sudden provocation andhence the accused is entitled to the benefit of Section 300Exception 4 IPC.”

17. The above case is also clearly distinguishable and not applicablein the facts of the present case.

A18. Now, we come to conviction of the appellant underSection 34. The submission made by the appellant is that there could beno conviction under Section 34 for the appellant since there is no evidenceof any pre-planned murder of deceased. Insofar as the submission ofthe learned counsel for the appellant that in the First Information Report,it has mentioned that appellant had held hands of the deceased and inBthe evidence before the Court, it was mentioned that appellant held theneck of the deceased. All the three eye-witnesses, PW1, PW2 andPW4, who appeared before the Court have stated that Asif Khan caughthold of the neck of Sardarkha and accused No.1 assaulted him by knife.Paragraph No. 4 of the examination-in-chief of PW1 is as follows:-C“4. After sometime they came back. At that time accused No.1told me that how you will not allow me to take more water, I willsee you. At that time accused No.2 Asifkhan caught hold neck ofSardarkhan and accused No.1 Nasibkhan assaulted him by knifeon the right side of his stomach……”D19. In the cross-examination, PW1 again stated that accused No.2caught hold of neck of his brother. The evidence of PW2 and PW4 isalso consistent that Asif Khan caught hold the neck of Sardarkha andaccused No.1 assaulted Sardarkha on his right rib by knife. Whether, inthe facts of the present case and the evidence on record, the appellantEcould be convicted under Section 302 with aid of Section 34 is questionto be answered.

20. The test for applicability of Section 34 in fact situation of anoffence has been clearly and categorically laid down by this Court.Section 34 of IPC provides as follows:-

34. Acts done by several persons in furtherance of commonFintention.— When criminal act is done by several persons infurtherance of the common intention of all, each of such personsis liable for that act in the same manner as if it were done by himalone.

21. The judgment of Privy Council in Mehbub Shah Vs.GEmperor, AIR 1945 PC 118 has elaborately considered the ingredientsunder Section 34 and the said judgment of Privy Council has been reliedon and approved by this Court time and again. The Privy Council inabove case laid down that under Section 34, the essence of that liabilityis to be found in the existence of common intention animating theHaccused leading to the doing of criminal act in furtherance of suchintention. In Paragraph No.13, following has been laid down:-

“13. In 1870, it was amended by the insertion of the words “infurtherance of the common intention of all” after the word “persons”and before the word “each,” so as to make the object of thesection clear. Section 34 lays down principle of joint liability inthe doing of criminal act. The section does not say “the commonintentions of all” nor does it say “an intention common to all.”Under the section, the essence of that liability is to be found in theexistence of common intention animating the accused leading tothe doing of criminal act in furtherance of such intention. Toinvoke the aid of Section 34 successfully, it must be shown thatthe criminal act complained against was done by one of theaccused persons in the furtherance of the common intention ofall; if this is shown, then liability for the crime may be imposed onany one of the persons in the same manner as if the act weredone by him alone. This being the principle, it is clear to theirLordships that common intention within the meaning of the sectionimplies pre-arranged plan, and to convict the accused of anoffence applying the section it should be proved that the criminalact was done in concert pursuant to the prearranged plan. As hasbeen often observed, it is difficult if not impossible to procuredirect evidence to prove the intention of an individual; in mostcases it has to be inferred from his act or conduct or other relevantcircumstances of the case.”22. In Pandurang and Others Vs. State of Hyderabad, AIR1955 SC 216, Justice Vivian Bose, speaking for the Bench consideredthe ingredients of Section 34 and relying on Privy Council judgment inMehbub Shah Vs. Emperor (supra) laid down following in ParagraphNos. 32 to 34:-

“32. As we have just said, the witnesses arrived at time whenthe beating was already in progress. They knew nothing aboutwhat went before. We are not satisfied that Tukaram is proved tohave done anything except be present, and even if it he acceptedthat Nilia aimed blow at Ramchander’s thigh he was so halfhearted about it that it did not even hit him; and in Pandurangcase, though armed with lethal weapon, he did no more thaninflict comparatively light head injury. It is true they all ran awaywhen the eye-witnesses arrived and later absconded, but there isnothing to indicate that they ran away together as body, or thatthey met afterwards. Rasikabai says that the “accused” raised

ABCD

their axes and sticks and threatened her when she called out tothem, but that again is an all embracing statement which we arenot prepared to take literally in the absence of further particulars.People do not ordinarily act in unison like Greek chorus and,quite apart from dishonesty, this is favourite device with witnesseswho are either not mentally alert or are mentally lazy and aregiven to loose thinking. They are often apt to say “all” even whenthey only saw “some” because they are too lazy, mentally, todifferentiate. Unless therefore witness particularises when thereare number of accused it is ordinarily unsafe to accept omnibusinclusions like this at their face value. We are unable to deduceany prior arrangement to murder from these facts.

33. Now in the case of Section 34 we think it is well establishedthat common intention presupposes prior concert. It requires apre-arranged plan because before man can be vicariouslyconvicted for the criminal act of another, the act must have beendone in furtherance of the common intention of them all: MahbubShah v. King Emperor. Accordingly there must have been priormeeting of minds. Several persons can simultaneously attack aman and each can have the same intention, namely the intentionto kill, and each can individually inflict separate fatal blow andyet none would have the common intention required by the section

because there was no prior meeting of minds to form pre-arranged plan. In case like that, each would be individually liablefor whatever injury he caused but none could be vicariouslyconvicted for the act of any of the others; and if the prosecutioncannot prove that his separate blow was fatal one he cannot beconvicted of the murder however clearly an intention to kill couldbe proved in his case: Barendra Kumar Ghosh v. King- Emperorand Mahbub Shah v. King-Emperor. As Their Lordships say inthe latter case, “the partition which divides their bounds is oftenvery thin: nevertheless, the distinction is real and substantial, andif overlooked will result in miscarriage of justice”.

34. The plan need not be elaborate, nor is long interval of timerequired. It could arise and be formed suddenly, as for examplewhen one man calls on bystanders to help him kill given individualand they, either by their words or their acts, indicate their assentto him and join him in the assault. There is then the necessary

meeting of the minds. There is pre-arranged plan however hastilyformed and rudely conceived. But pre-arrangement there mustbe and premeditated concert. It is not enough, as in the latterPrivy Council case, to have the same intention independently ofeach other, e.g., the intention to rescue another and, if necessary,to kill those who oppose.”

23. The Constitution Bench of this Court in Mohan Singh andAnr. Vs. State of Punjab, AIR 1963 SC 174 had again reiterated theingredients of Section 34. Constitution Bench has also relied on andapproved the Privy Council judgment in Mehbub Shah Vs. Emperor(supra) noticing the essential constituents of vicarious liability underSection 34, Justice Gajendragadkarspeaking for the Bench laid downfollowing in Paragraph No.13:-

“13…………………………………The essential constituent ofthe vicarious criminal liability prescribed by Section 34 is theexistence of common intention. If the common intention in questionanimates the accused persons and if the said common intentionleads to the commission of the criminal offence charged, each ofthe persons sharing the common intention is constructively liablefor the criminal act done by one of them. Just as the combinationof persons sharing the same common object is one of the featuresof an unlawful assembly, so the existence of combination ofpersons sharing the same common intention is one of the featuresof Section 34. In some ways the two sections are similar and insome cases they may overlap. But, nevertheless, the commonintention which is the basis of Section 34 is different from thecommon object which is the basis of the composition of an unlawfulassembly. Common intention denotes action-in-concert andnecessarily postulates the existence of prearranged plan andthat must mean prior meeting of minds. It would be noticed thatcases to which Section 34 can be applied disclose an element ofparticipation in action on the part of all the accused persons. Theacts may be different; may vary in their character, but they are allactuated by the same common intention. It is now well-settledthat the common intention required by Section 34 is different fromthe same intention or similar intention. As has been observed bythe Privy Council in Mahbub Shah v. King-Emperor[4]commonintention within the meaning of Section 34 implies pre-arranged

Aplan, and to convict the accused of an offence applying the sectionit should be proved that the criminal act was done in concertpursuant to the pre-arranged plan and that the inference of commonintention should never be reached unless it is necessary inferencededucible from the circumstances of the case.

B24. The principles as noticed above have been reiterated time andagain. We may refer to the judgment of this Court in Narinder Singhand Another Vs. State of Punjab, (2000) 4 SCC 603, the facts in theabove case has been noticed in Paragraph No.5 of the judgment, whichare to the following effect:-

C“5. On 6-11-1989 Gurdev Singh with his son Hardip Singh (PW2) was going on bicycle to Village Jagatpur in order to withdrawthe money from his account in the Cooperative Bank there. HardipSingh was pedalling the cycle while Gurdev Singh was sitting onits carrier. Around 12 o’clock when they reached the metalledroad near the field of one Gurmej Singh, resident of Jagatpur, theyDsaw the appellants sitting near tree. They got up and interceptedGurdev Singh and Hardip Singh. Both got down from their cycle.Appellant Narinder Singh proclaimed that they would teach GurdevSingh lesson as he had not vacated the office of Granthi of theGurudwara as per their demand. He grabbed Gurdev Singh by hisEarms while the second appellant Ravinder Singh alias Khannatook out gatra kirpan, which he was wearing and stabbed GurdevSingh with the gatra kirpan on the left side of his neck. GurdevSingh after receiving the kirpan-blow fell down…………………”25. The role assigned was that he grabbed Gurdev Singh by hisarms while the second appellant stabbed Gurdev Singh with kirpan. InFParagraph No.5, following has been stated:-

“5. …………………………He grabbed Gurdev Singh by hisarms while the second appellant Ravinder Singh alias Khannatook out gatra kirpan, which he was wearing and stabbed GurdevSingh with the gatra kirpan on the left side of his neck. GurdevGSingh after receiving the kirpan-blow fell down…………………”

26. This Court in Paragraph No.16 of the judgment held that boththe appellants had committed the murder of Gurdev Singh. It was heldthat it is not material to bring the case under Section 34, as to whoinflicted the fatal blow, following was laid down in Paragraph No.16:-H

“16. ……………Both the appellants committed the murder ofGurdev Singh, Granthi in furtherance of their common intention.It was submitted by Mr Gupta that Narinder Singh could not havebeen convicted with the aid of Section 34 as this section is nowherementioned in the impugned judgment. Mention of the section inthe judgment is not the requirement of law to convict person. Ifthe ingredients of the offence are present, conviction can be made.It is not material to bring the case under Section 34 IPC as towho, in fact, inflicted the fatal blow. The High Court has rightlyinterfered in the matter and sentenced the appellants accordingly.”

27. To the same effect is the judgment of this Court in RajuPandurang Mahale vs. State of Mahrashtra and Another, (2004)4 SCC 371. Another judgment, which is relevant for the present caseis the case of Murari Thakur and Another Vs. State of Bihar, (2009)16 SCC 256. In the above case, the main plea of the accused was thathe had caught the legs of the deceased whereas third accused cut himwith his sharp edged weapon. In paragraph No.7, following was laiddown:-

“7. We agree with the view taken by the High Court and the trialcourt that the accused had committed murder of deceased BalKrishna Mishra after overpowering him in furtherance of theircommon intention on 26-8-1998 at 4 p.m. No doubt it was SunilKumar, who is not before us, who cut the neck of the deceasedbut the appellants before us (Murari Thakur and Sudhir Thakur)also participated in the murder. Murari Thakur had caught thelegs of the deceased and Sudhir Thakur sat on the back of thedeceased at the time of commission of this murder. Hence, Section34 IPC is clearly applicable in this case.”

28. When we look into the evidence in the present case, in light ofthe principles as enunciated above, it is clear that common intention ofthe accused Nos.1 and 2 is fully established by the circumstances andevents unfolded in the prosecution story, duly corroborated by PW1,PW2 and PW4. After altercation took place between accused No.1 andinformant, the deceased, who was brother of informant came andintervened in the matter, due to which the accused Nos.1 and 2immediately returned from the spot in motorcycle and came back after10 minutes armed with deadly weapon. When both the accused returnedafter altercation with two brothers – informant and deceased and came

Aback after 10 minutes armed with weapon, common intention is clearlyestablished and it cannot be said that there was no meeting of mindsbetween accused Nos.1 and 2, when they returned with weapon andstabbed the deceased. The accused No.2 held the neck of the deceasedwhen accused No.1 stabbed him by knife. The manner of incident alsoBindicate that both had common intention, hence, High Court did not commitany error in convicting the accused No.2 under Section 302 read withSection 34.29. We, thus, do not find any merit in the appeals, the appeals aredismissed.

Nidhi Jain

Appeals dismissed.