Jamal Ali and others vs The State of Madhya Pradesh

Appellants have filed this appeal against the judgment dated 10/03/1995 passed in Sessions Trial No. 77/1993. Fiver persons were prosecuted

for commission of offence punishable under Sections 302, 148, 149 and 34 of IPC. The trial court acquitted accused Nanu @ Manish Kumar and

convicted all the accused persons for commission of offence punishable under Section 302/34 of IPC and awarded sentence of life. During

pendency of appeal, accused-appellant No. 4 Rajesh has been died. Appeal filed by appellant No. 4 Rajesh is abated vide order dated

13/05/2013.

Prosecution story in brief is that deceased was passing through near Mratunjay Talkies Itarsi, all the accused persons were dancing in a Barat.

Deceased had dashed Nanu @ Manish Kumar by bicycle due to which all accused persons got annoyed. They catch hold the deceased and they

had beaten him. Ram Sahay Sharma tried to save the deceased. Two accused persons Rajesh armed with Gupti and Nanu @ Manish Kumar

armed with knife had inflicted injuries on the person of the body of the deceased and thereafter, they ran away. Deceased was taken to Janseva

Hospital, Itarsi. Thereafter, report of the incident was lodged at the police station. After investigation police filed chargesheet against all the

accused persons. Accused persons abjured their guild during trial. Trial court acquitted one accused Nanu @ Manish Kumar and convicted other

accused persons after holding them guilty for commission of offence punishable under section 302/34 of IPC.

Learned counsel for the appellants has submitted that trial court has convicted the appellants on the basis of the evidence of PW/15 who alleged

to be eye witness, however, he is not reliable. He has further submitted that I.O. was not examined before the trial court, hence, the conviction of

the appellants is contrary to law. Learned counsel for the appellants has further submitted that the allegation of inflicting injuries is against Rajesh

and Nanu @ Manish Kumar. Nanu has been acquitted and Rajesh has been died. The present appellants are convicted with the aid of Section 34

of IPC. The incident has occurred all of a sudden. There was no premeditation neither there was prearranged plan between the accused persons to

kill the deceased, hence, conviction of present appellants No. 1 to 3 with the aid of Section 34 of the IPC is against the law. In support of his

contentions, learned counsel for the appellants relied upon the judgment of Apex Court report in Vijendra Singh Vs. State of Uttar Pradesh (2017)

11 SCC 129.

Learned Government Advocate for the State has admitted the fact that present appellants were unarmed and allegation against present

appellants is that they catch hold the deceased, however, he is submitted that conviction of present appellants with the aid of Section 34 of IPC is

proper because they chased the deceased up to some extent and thereafter, injuries were inflicted. Present appellants had encircled the deceased

at the time of incident, hence, their conviction as awarded by the trial court is proper.

Allegation against Rajesh who has been died was that he was armed with gupti and he had inflicted injuries along with another accused person

Nanu @ Manish Kumar who was alleged to be armed with knife on the person of the deceased. Nanu @ Manish Kumar has been acquitted by

the trial court. Allegation against present appellants is that they encircled the deceased, hence, the question before the Court is that whether

evidence of PW/15 who is sole eye witness is reliable up to the extent that present appellants had catch hold the deceased and whether the

appellants have rightly been convicted by the trial court with the aid of Section 34 of IPC.

PW/15 Ram Sahay Sharma deposed that at around 8.30 pm in the night I was going to my house I had witnessed that behind Bharat Talkies

near Mratunjay Talkies, appellants had been beating the deceased. His name was Prakash. He had called me uncle save me. I asked from the

appellants that why you are beating the deceased. They told me that deceased had committed accident of Nanu @ Manish Kumar by Bicycle. I

requested them not to beat the deceased and told the deceased to ran away, thereafter, Rajesh had taken out gupti and he had told me that I

would kill you. Deceased was lying there and there were injuries on his body. He told me uncle please save me. Blood was oozing from his thigh. I

had taken out my handkerchief and wrapped the injury which was on his thigh. Thereafter I had taken him upto Mratunjay Talkies, from there in a

Auto Riksha to hospital. Doctor told me that I would inform relatives of the deceased thereafter I made phone call to the relatives of the deceased.

They came there at 10.50 in the night, deceased was died. Thereafter, I went to the police station Itarsi and lodged report Ex. P/19, I signed the

same. Two persons were arrested in the night. Panchanama of dead body was prepared which is Ex. P/1. Spot map is Ex. P/17, I signed the

same. Bicycle was seized vide seizure memo Ex. P/3, I signed the same. Police seized blood stained clothes vide seizure memo Ex. P/2 and my

kurtha paijama. I signed the same. I also signed seizure memo of red earth and plain earth Ex. P/20. Police also seized handkerchief vide seizure

memo Ex. P/21. In his cross examination he admitted the fact that there was scuffle between the deceased and accused persons. This fact has not

been mentioned in the FIR. In para 18 of his cross examination he further admitted that quarrel had taken place before him during Barat and there

was some hottalk (Kahasuni). FIR is Ex. P/19-B which was lodged on the same day of incident at around 23.55. The time of incident is 22.15 pm.

It is mentioned in the FIR that when I was going to my house near Mratunjay Talkies a Barat was going on, I have seen some boys were quarreling

and Nanu, Rajesh, Jamal Ali, Goga @ Annees Khan and Mohd. Aslam Khan were beating Prakash. I told them why you are beating, thereafter,

deceased ran away and accused persons had encircled the deceased. Rajesh Mehtar had inflicted injuries by gupti and Prakash also inflicted

injuries. Deceased fell down. Other accused persons encircled the deceased. Thereafter, I had taken the deceased to the hospital in a Auto

Rickshaw. Family members of the deceased were there. Subsequently, I came to know that the deceased was died.

Dr. A. D. Mangtani, PW/7 who conducted postmortem of the deceased. He deposed that I noticed following injuries on the person of the body

of the deceased.

Incised wound- 2.5 x1.5 cm x3 cm deep left side gluteal region on posterior lateral aspect middle 1/3 part transverse in direction with laparing

and laterally.

Incised wound 2 cm x 1.5 cm x 1.5 cm. 5.5 cm below injury no.1 vertical in direction tapering end upwows.

Incised wound 3.5 cmx 1.5 cm x 0.5 cm upper 1/3 thigh post aspect. 5 cm below the creese of gluteal region middle 1/3 transverse in direction

lapering and laterally.

incised wound 2cmx1 cmx 0.5 cm posterio medical aspect. 3 cm below the gluteal creese oblique in direction.

Incised wound 5cmx2.5x12cm deep on posterio medical aspect middle 1/3 thigh, oblige, tempering end up wows. The wow going downward

and laterally on exploration of wow. The femral artery and vein cut with oblique cut on a clutor ----------- and grecilis muscle left side.

In para 5 of his statement, he admitted the fact that injury No. 5 which was on thigh was serious and injuries No. 1 to 4 were simple in nature.

There is no cross examination on behalf of the prosecution on the aforesaid evidence of doctor. I.O. has not been examined. Other witnesses

turned hostile.

From perusal of the evidence, it is clear that there is no allegation against the present appellants that they had inflicted any injury on the person of

the deceased. They were not armed with any deadly weapon. They were unarmed. PW/15 who lodged FIR and witness of incident deposed that

a quarrel had taken place between the deceased and appellants when a Barat was going on. Appellants were part of procession of Barat, they

were dancing. Deceased had hit one of the accused by Bicycle. He admitted the fact that there was hot talk and quarrel and in that event other two

accused persons had inflicted injuries on the person of the deceased.

Hon''ble Apex Court in Vijendra Singh Vs. State of Uttar Pradesh (2017) 11 SCC 129 has considered Section 34 of IPC in detail and held as

under:-

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 intention"" 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:-

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.

He has also relied on the decision in Suresh Sakharam 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 the evidence 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 passage from 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:-

... 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 pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused

but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his

separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved

in his case: Barendra Kumar Ghosh v. King Emperor[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 justice"".

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 prearrangement 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.

And, again:-

... 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 time-honoured way, ""the incriminating facts must be incompatible with the

innocence of the accused and incapable of explanation on any other reasonable hypothesis"". (Sarkar''s Evidence, 8th

Edn., p. 30).

In this context, we may refer with profit to the statement 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:-

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.

In Harshadsingh Pahelvansingh Thakore (supra), a three-Judge Bench, while dealing with constructive liability under Section 34

IPC has ruled thus:-

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.

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.

Hon''ble Supreme Court quoted constitutional Bench judgment report in Mohan Singh Vs. State of Punjab AIR 1963 SC 174. The Apex Court

had held that in holding a person guilty under Section 34 of IPC it has to be considered that there was a prearranged plan and there must be a

prior meeting of minds. Section 34 of IPC can be applied where an element of participation in action on the part of all the accused persons.

Common intention is different from the same intention or similar intention.

In the present case all the accused persons were dancing in a Baraat. The deceased was passing from the road. He was on bicycle, he had hit

one of the accused Nanu and thereafter a quarrel had taken place. All the three appellants were unarmed. There is no evidence that they had

inflicted any injury on the person of the body of the deceased. The allegation against the present appellants is that they have encircled the

deceased. From the aforesaid evidence, in our opinion, trial court has committed an error of law by holding that there was prearranged plan and

prior meeting of minds between the accused persons to kill the deceased, hence in our opinion, the trial court has committed an error of law in

convicting the present appellants with the aid of Section 34 of IPC. Consequently, the appeal filed by appellants No. 1,2 & 3 is hereby allowed.

The judgment of trial Court convicting and sentencing the appellants is hereby set-aside. Appeal filed by appellant No. 4 has already abated.

Appellants No. 1,2 and 3 are on bail. Their bail bonds are discharged.