Jaggi Alias Jagdish vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 03/07/1995 passed in Sessions Trial No. 96/95.

Prosecution story in brief is that Kamlesh, Rakesh, Prakash, Kartar Singh and deceased Kamal Singh used to come Sagar from their Village Sironja

for study. Accused Jaggi @ Jagdish was resident of village Lodhipura. Aforesaid village is on the way between Sagar and Sironja. Two days before

from the date of incident deceased Kamal Singh had torn book of accused Dalpat. On this, there was quarrel between them. On 30/11/1994 at around

11 O’clock Kamlesh, Rakesh, Prakash, Kartar Singh and Kamal Singh were going to school at Sagar from their village, near Lodhipura,

accused Jaggi @ Jagdish and other persons had quarrel with them, thereafter, they had rushed to the control room, near police station civil lines.

Accused Jaggi @ Jagdish, Dalpat, Mohan and Ramji chased them on two bicycles. Thereafter, they had committed maarpeet with Kamal Singh.

Dalpat had inflicted blows of knife at Kamal Singh, he fell down thereafter, Dalpat tried to kill Kamlesh S/o Ramcharan, he ran away from the spot.

He entered into the Bungalow of Mr. R.S. Gupta, Dy. Commissioner. Present appellant also reached there, thereafter accused Dalpat inflicted

blows of knife to injured Kamlesh in the Aagan. Mr. R.S. Gupta, catch hold accused Dalpat. Police Personnel also came there and they catch hold

present appellant and Dalpat. Injured persons and deceased were sent to district hospital Sagar. Station House Officer, Police Station Civil Lines

reached at the hospital. He recorded Dehati Nalsi as per version of Kamlesh and also recorded dying declaration of deceased Kamal Singh which is in

the form of statement under Section 161 of Cr.P.C. and conducted investigation. After investigation charge-sheet was filed. Present appellant abjured

his guilt during trial and pleaded innocence. Accused Dalpat was minor he was tried separately by Juvenile court. It is informed by Dy. Government

Advocate that accused Dalpat has been died.

There are three eye witnesses of the incident. PW/11 Kamlesh is the injured eye witness. He deposed that on 30/11/1994 in the afternoon I, Kamal

Singh, Prakash and Kartar Singh were going to school. We were walking. Distance between our village and Sagar is near about 8 kms. Village

Lodhipura is on the way between our village and Sagar. On 29/11/1994 Kamal Singh had torn one page of book of Dalpat. On 30/11/1994 when we

were going to Sagar then on the way near flour mill at village Lodhipura Rakesh and Dhan Singh told that why we had quarrel with Dalpat

Yesterday, thereafter, they had beaten Kamal Singh and Kartar Singh. They slapped them, we went to police line near Sagar University. Accused

persons Jaggi @ Jagdish, Ramji, Mohan and Dalpat also came there on their bicycles. They parked their bicycles under koha tree. They had beaten

me and Rakesh and slapped us. At that time Dalpat had taken out knife from his pocket. Kamal Singh ran upto some distance, at that time Dalpat

inflicted two blows at Kamal Singh. One is on the chest and one other on back side. Jaggi @ Jagdish also tried to beat him. IÂ ran away and entered

in to bungalow of Dy. Commissioner and near the gate I received a blow of knife on my chest inflicted by Dalpat who had inflicted another blow I

could not see. Dy. Commissioner catch hold hand of Dalpat. Thereafter, some persons came there, they had taken me out side from the bungalow of

Dy. Commissioner. Other persons had taken us on auto to police station and from there to hospital. We were referred to Bhopal. On the way to

Bhopal Kamal Singh was died. Police seized my shirt and recorded my statement in the evening at District Hospital Sagar which is Ex. P/26, I signed

the same. I also signed Ex. P/16.

Another witness PW/3 R.S. Gupta, Dy. Commissioner deposed that on 30/11/1994 I was at my house. At around 11.15 in the afternoon I was

talking to milkman. He used to provide milk to me. At that time three boys came running towards my house. Two boys were chasing one boy. One

boy who was running forward, entered into my house and he requested to save me. One boy entered into my house who was chasing. He crossed

Barandah and reached at the Aagan, thereafter another boy had inflicted blows by knife. I catch hold hand and thereafter, 15-20 persons came there.

Police constables were also there. I handed over the boy with knife to the police constable. I make phone call to Gopalganj Police Station. I could not

remember the names of boys who were present at my house. TI police station was present there. He prepared spot map. Plain earth and red earth

was also seized from the place of incident. Spot map is Ex. P/7, I signed the same and seizure memo is Ex. P/8.

PW/9 Ramakant deposed that on 30/11/1994 I and another constable Jagat Singh were going to tea stall to take tea, three boys running there. One

boy running forward and other two boys were chasing him. Both the boys entered into Bungalow of Dy. Commissioner. I and Jagat Singh reached at

the Bungalow of Dy. Commissioner. We entered into the bungalow of Dy. Commissioner where in the Aagan one boy was lying and Dy.

Commissioner was holding the second boy. He had knife in his hand. Jagat Singh had taken out the knife from his hand thereafter we had taken both

the boys outside of bungalow. Injured person told the name of boy who was inflicted blow of knife Dalpat. Boy who was standing outside the

bungalow told his name Jaggi @ Jagdish. Another boy was also lying near bungalow he was injured. We had taken both the injured persons to police

station Gopalganj. A knife was seized vide seizure memo Ex. P/23 and one T-Shirt was also seized from Jaggi @ Jagdish vide seizure memo Ex.

P/24. Both the accused persons were arrested vide seizure memo Ex. P/25.

PW/2 Rakesh deposed the same facts as deposed by PW/11 that Dalpat had inflicted two blows at Kamal Singh by knife and thereafter other

persons had ran away.

PW/14 Prakash another witness. He also deposed that Dalpat had taken out a knife from his pocket and he had inflicted blow at Kamal Singh then

Kamlesh ran away from the spot. He entered into Bungalow of Dy. Commissioner and Jaggi @ Jagdish had inflicted blow at Kamlesh.

Same facts have been deposed by PW/ 15 Kartar Singh.

PW/ 4 Dr. A.K. Saraf who examined both the injured at District Hospital on 30/11/1994. He deposed that I examined Kamlesh and noticed

following injuries on his person:

(1) One incised injury 3 cm.x ½ cm. on the chest.

(2) One incised injury 5 cm. x 1 cm. on back side.

Injuries were caused by hard and sharp edged weapon. Report is Ex. P/10 and I signed the same. He further deposed that other injured Kamal Singh

was also examined I noticed one injury. One incised injury 2 cm. X 1 cm. on back side it was caused by hard and sharp edged weapon. He further

deposed that I recorded statement of Kamal Singh on 30/11/1994 which is Ex. P/16.

PW/10 Dr. Ajay Badonya, deposed that I examined Kamal Singh on 30/11/1994 and noticed one incised injury on back side. Patient was referred

to Hamidiya Hospital, Bahopal. He further deposed that on the same day I examined Kamlesh and noticed two incised injuries on the person, one on

the chest and another on back side.

PW/2 Dr. M.K. Choubey, who performed postmortem of the deceased. He deposed that I noticed following injuries on the person of the

deceased.

(1)One incised wound on back side on 8th thoracie vertebrae.

(2)Stitched wound on Rt. Side of chest posterior auxilary line at the level of 9th rib.

There was injury in left lung. The deceased was died due to asphyxia and shock due to injury suffered by him.Â

PW/17 C.L. Sharma, investigating officer deposed that I was posted on 30/11/1994 as Town Inspector at Civil Line Police Station, Sagar. I

received telephonic massage in regard to quarrel. Thereafter I reached at District Hospital and I recorded Dehati Nalsi as per version of Kamlesh

which is Ex. P/26, I signed the same. I also recorded dying declaration of Kamal Singh which is Ex. P/16, I signed the same, thereafter I prepared

spot map Ex. P/18 and another spot map Ex. P/19 and I signed the same. I seized plain earth and red earth. I seized two bicycles vide seizure memo

Ex. P/20. Jaggi, Dalpat and Ramji were arrested vide arrest memo Ex. P/25. From the possession of accused, shirt was seized vide seizure memo Ex.

P/24, I signed the same.

From the evidence of injured witness PW/11, it is clear that earlier there was quarrel when they were going to school. Two persons slapped

Kamlesh and Kamal Singh, thereafter, they ran away from the place. They reached at Police Station, accused Jagdish and other two persons came

there on bicycle and at that time Dalpat had taken out knife from his pocket and when Kamal Singh ran away upto some distance he had inflicted two

blows on chest and back side. Same facts have been deposed by other witnesses students PW/ 12 and PW/15 who were also accompanying the

injured persons. Thereafter, injured Kamal Singh ran away and he entered into the bungalow of Dy. Commissioner. In the court yard of bungalow of

Dy. Commissioner Dalpat inflicted blows by knife to injured Kamlesh PW/11. There is no evidence that present appellant had inflicted blow to the

deceased by knife. The deceased in his dying declaration also deposed that Dalpat had inflicted blows by knife. From the present appellant no knife

was seized by the police. There is no evidence that the present appellant had inflicted injuries to the deceased or injured by knife. He has been

convicted with the aid of section 34 of IPC. The Hon’ble Apex Court in the case of Virendra Singh Vs. State of Uttar Pradesh (2017) 11 SCC

129 has held as under in regard to applicability of Section 34 of IPC.

“18. The heart of the matter is whether Section 34 IPC would be attracted to such a case or not. In this regard, we may refer to certain authorities

as to how this Court has viewed the concept of “common intentionâ€​ and thereafter reflect upon how it is applicable to the case at hand.

Mr. Giri has drawn our attention to paragraph 10 of the authority in Jai Bhagwan (supra). It reads 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 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.â€​

He has also relied on the decision in SureshSakharam Nangare (supra). In the said case, the Court after referring to Section 34 IPC opined that 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 the 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 the said case, the Court after analyzing theevidence opined that there is no material from the side of the prosecution to show that the appellant

therein had any common intention to eliminate the deceased because the only thing against the appellant therein was that he used to associate himself

with the accused for smoking ganja. On this factual score, the Court came to hold that the appellant could not be convicted in aid of Section 34 IPC.

In this regard, we may usefully refer to a passagefrom the authority in Pandurang and Ors. v. State of Hyderabad[9]. The three-Judge Bench in

the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that:-

“32. … It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been

done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor[10]. Accordingly there must have been a prior meeting of

minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually

inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to

form a prearranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted

for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder

however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor[11] and Mahbub Shah v. King Emperor

(supra). As Their Lordships say in the latter case, “the partition which divides their bounds is often very thin: nevertheless, the distinction is real and

substantial, and if overlooked will result in miscarriage of justiceâ€​.

The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls

on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault.

There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre- arrangement

there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other,

e.g., the intention to rescue another and, if necessary, to kill those who oppose.â€​

And, again:-

“34. … But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this

class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent

to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances

which necessarily lead to that inference, or, as we prefer to put it in the timehonoured way, “the incriminating facts must be incompatible with the

innocence of the accused and incapable of explanation on any other reasonable hypothesisâ€​. (Sarkar’s Evidence, 8th Edn., p. 30).â€​

In this context, we may refer with profit to thestatement of law as expounded by the Constitution Bench in Mohan Singh (supra). In the said case,

the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several

persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It

has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention.

The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged,

each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the

concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that just as the combination of persons sharing the same common

object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the

features of Section 34. In some ways the two sections are similar and in some cases they may overlap. The common intention which is the basis of

Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-

concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to

which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may

vary in their character, but they are all actuated by the same common intention. Thereafter, the Court held:- “13. It is now well-settled that the

common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in

Mahbub Shah v. King-Emperor (supra) common intention within the meaning of Section 34 implies a prearranged plan, and to convict the accused of

an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan and that the inference

of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.â€​

In Harshadsingh Pahelvansingh Thakore (supra), athree-Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled

thus:- “7. Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P.

[12]; Maina Singh v. State of Rajasthan.[13]) Lord Sumner’s classic legal shorthand for constructive criminal liability, expressed in the Miltonic

verse “They also serve who only stand and wait†a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons

into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of

intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive

purpose of the Penal Code.â€​

In Lallan Rai and Ors. v. State of Bihar[14] the Court relying upon the principle laid down in Barendra Kumar Ghosh (supra) has ruled 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.

In Goudappa and Ors. v. State of Karnataka[15] the Court has reiterated the principle by opining that Section 34 IPC lays down a principle of joint

liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how

to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been

committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the

weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused

had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration. 28.

The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of

common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases

cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common

intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained

from the evidence brought on record. 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 fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein

have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can

be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See : Kirpal and Bhopal v.

State of U.P.[16]). In Bharwad Mepa Dana and Anr. v. The State of Bombay[17], it has been held that Section 34 IPC is intended to meet a case in

which it may be difficult to distinguish the 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. The principle which the Section embodies is participation in some action with the common intention of

committing a crime; once such participation is established, Section 34 is at once attracted. â€​

The Hon’ble Apex court in the aforesaid judgment had considered various earlier judgments of the Apex Court and constitutional Bench judgment

of Hon’ble Apex Court. Hon’ble Apex court has held that common intention is gathered from the manner in which the crime has been

committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the

weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused

had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration that

whether there was prearranged plan or prior meeting of minds or not.

In the present case the deceased injured and other students were going to school. On the way the accused persons stopped them thereafter

some of them slapped two boys. In that event accused Dalpat had inflicted two blows of knife at the deceased Kamal Singh. Thereafter Kamlesh ran

away from the spot. Present appellant and another accused Dalpat had chasing him. Dalpat entered into the bungalow of Dy. Commissioner where

the injured boy had entered before the accused he was tried to save himself and in the courtyard Dalpat inflicted blows by knife to the injured

persons. Present appellant was standing outside of bungalow.

In view of the aforesaid evidence, and sequence of events, in our opinion present appellant Jaggi @ Jagdish is not liable to be convicted for

commission of offence punishable under Section 302 with the aid of 34 of IPC. At that time there was no intention of the appellant to kill the deceased

because he was not having any weapon. The present appellant is liable to be convicted for commission of offence punishable under Section 307 of

IPC with the aid of Section 34 of IPC because he had chased injured person along with main accused Dalpat and Dalpat after entering into bungalow

of Dy. Commissioner inflicted blows of knife at the injured person. Present appellant was standing outside of bungalow. Hence, in our opinion, the trial

court has rightly convicted the present appellant for commission of offence punishable under Section 307/34 of IPC. We further hold that conviction of

the appellant for commission of offence punishable under Section 302/34 of IPC is not proper.

Consequently, the appeal filed by appellant Jaggi @ Jagdish is partly allowed. The appellant is acquitted from the charge of Section 302/34 of

IPC and sentence awarded by the trial court is hereby set-aside. The conviction of the appellant for commission of offence punishable under Section

307/34 of IPC is hereby upheld and the sentence awarded by the trial court is also upheld. The appellant has already completed seven years of jail

sentence, he is on bail, his bail bonds are discharged.