Shyam Prasad and Others vs State of M.P.

P.K. Jaiswal, J

This appeal arises out of judgment of conviction dated 29th March, 2004, passed by the Additional Sessions Judge, Manasa, district Mandsaur in Sessions Trial No. 43/2003, whereby appellant No. 1 Shyam Prasad Mishra and appellant No. 2 Banti @ Rajendra Tiwari have been convicted u/s 302 read with Section 34 of the IPC and each of them has been sentenced to undergo imprisonment for life with fine of Rs. 10,000/- and in default of payment of fine to undergo additional RI for three years. Appellant No. 3 Rajendra Prasad Mishra has been convicted u/s 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs. 10,000/- and in default of payment of fine to undergo additional RI for three months. The learned trial Court also directed that fine amount be paid to the mother and father of the victim (deceased Samrath). The prosecution case is as follows: Appellant No. 1 Shyam Prasad Mishra and appellant No. 3 Rajendra Prasad Mishra @ Raju are real brother. There was a dispute between Naresh Tiwari and Radheshyam Meena, residents of village Magarda in respect of share of garlic crop, which was sown at the submerge area of dam. On 22.3.2003 in the night Radheshyam Meena along with his companions had gone to commit theft of garlic crop from the said field. The matter was reported to the police. On the basis of information received at Police Station Rampura, the police personnels reached the spot. On seeing them Radheshyam Meena and his companions left the place, after leaving tractor trolley & motorcycle towards Kedareshwar Road. When they were on the way to Kedareshwar Road, one motorcycle came there, which was being driven by Ramesh Chand (PW7) and deceased Samrath Meena was pillion rider on the said motorcycle. At about 3 AM in the night when the said motorcycle reached in front of the hut/house of Kanwarlal Meena, appellants Shyam Mishra and Raju @ Rajendra Prasad Mishra, relatives of Naresh Tiwari were waiting for the culprits, who were trying to commit the theft of garlic crop and were hidden near the house of Kanwarlal Meena and no sooner the motorcycle came in front of the house of Kanwarlal Meena, appellants Shyam Mishra affixed ''Kalpa'' (an instrument which is used for agricultural purposes) on the road and tried to stop the motorcycle. At that relevant point of time appellant No. 3 Raju @ Rajendra Prasad Mishra, who was armed with sword gave sword blow to the person, who was driving the motorcycle. He bow his neck down, Samrath Meena, who was pillion rider, sustained the said sword injury on his neck, due to which he fell down and died on the spot. The allegation against the appellants is that they tried to disappear the dead body of Samrath Meena and, therefore, an offence under Sections 302 and 201 of the IPC has been registered against them. Untimely death of Samrath Meena was reported by village Chowkidar Keshrilal Meena (PW2) at Rampura Police Station of district Neemuch and on the basis of the said report marg No. 4/2003 was registered u/s 174 of the Cr.P.C. and, during marg investigation vide FIR (Ex. P/11) for an offence u/s 302, 201 & 34 of the IPC was registered at Crime No. 51/03. During investigation the inquest was prepared and the dead body was sent for postmortem. Dr. B.L. Rawal (PW9) conducted the postmortem. Ex. P/6 is the postmortem report. The accused persons were arrested and after completion of the investigation charge sheet was filed.

The prosecution examined Kanwarlal (PW1), Kaushalyabai (PW5), Ramesh Chand, driver of the motorcycle (PW7) and Radheshyam (PW8) as eyewitnesses. They deposed that appellant No. 3 Raju @ Rajendra Prasad Mishra was armed with sword and caused fatal injury to the deceased. They have not stated that appellant No. 2 Banti @ Rajendra was present at the time of incident. The allegation against appellant No. 1 Shyam Prasad Mishra is that he was along with appellant No. 3 Rajendra Prasad Mishra and it is he who affixed ''Kalpa'' on the road to stop motorcycle and exhorted the appellant No. 2 that motorcycle is coming and to cause injury to motorcyclist and due to his exhortation the appellant No. 2, who was his brother, gave fatal blow to the pillion rider of the motorcycle. The remaining 8 witnesses, who are Investigating Officer, doctor, witnesses of seizure memo, have deposed that there was a dispute between Naresh Tiwari and Radheshyam Meena in respect of share in garlic crop of submerge area of dam and supported the case of the prosecution.

The trial Court, after appreciating the evidence on record acquitted the appellants u/s 201/ 34 of the IPC, but convicted the appellants No. 1 & 2 u/s 302/ 34 of the IPC and appellant No. 3 u/s 302 of the IPC and sentenced them as stated herein-above.

Learned counsel for the appellants have submitted that the appellant No. 3 was having no intention to cause particular injury, which was sufficient to cause death, nor he had any knowledge that the said injury is likely to cause death. It is also submitted that at the spur of moment the appellant No. 3, who was armed with sword, gave fatal blow on neck of the deceased, resulting in his death and no case for offence punishable u/s 302/ 34 of the IPC can be made out against the appellants No. 1 & 2 and submitted that it is a case u/s 304 Part-II of the IPC. In respect of appellant No. 2 it is also submitted that he only exhorted the appellant No. 3 and there was no intention, nor there was any pre-plan and with the aid of Section 34 of the IPC he has been convicted u/s 302 of the IPC. He further submitted that once the appellant No. 2 was acquitted u/s 201 of the IPC and he was not present at the place of occurrence and his presence was doubtful. He came later on at 5.00 AM in the morning along with appellants No. 1 & 3, the learned trial Court committed an error in convicting him. It is lastly submitted that from the evidence, which is on record, no case is made out against the appellants No. 1 & 2 and prayed for their acquittal. In respect of appellant No. 3 it is submitted that he is in jail for a period more than 10 years and the death caused by injury inflicted on neck of the deceased in a sudden quarrel without any intention to cause particular injury, which was sufficient to cause death, his conviction u/s 302 of the IPC be altered to Section 304 Part-II of the IPC.

On the other hand, learned Government Advocate drew our attention to the finding recorded by the trial Court in paragraphs 68 to 72 and the statements of the PWs 1, 5, 7 & 8 and submitted that the appellants No. 1 & 2 were waiting for the victim and his companion and they were preplanned to inflict injury to them and, therefore, it cannot be said that there was no intention to commit the murder of the deceased. He submitted that the learned trial Court has not committed any legal error in convicting the appellants and preyed for dismissal of the appeal.

We have heard the learned counsel for the parties and perused the record. We are of the view that in the facts & circumstances of this case the offence committed by the appellant No. 3 falls u/s 304 Part-II of the IPC. In respect of appellants No. 1 & 2 the essential ingredients of Section 34 of the IPC i.e., a common intention was shared, has not been established by the prosecution. From the statements of all the four eyewitnesses the appellant No. 2 was not present on the spot and his presence was doubtful, whereas the allegation against the appellant No. 1 is that he affixed ''Kalpa'' on the road to stop the motorcycle and when motorcycle of the deceased was stopped, he exhorted the appellant No. 3 without any common intention to commit the murder of the deceased.

Section 34 IPC 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 has the "common intention" to commit the offence. The phrase "common intention" implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention u/s 34 IPC is to be understood in a different sense from the "same intention" or "similar intention" or "common object". The persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC. ( Mohan Singh Vs. State of Punjab,

The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the persons concerned had shared a common intention (vide Krishnan and another Vs. State of Kerala, & Harbans Kaur and Another Vs. State of Haryana,

In Gopi Nath @ Jhallar Vs. State of U.P., the Apex Court observed as under :-

8....Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself for the whole of the criminal action be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The Section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or prearranged plan or one manifested or developed on the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.

In Krishnan and Another Vs. State Rep. by Inspector of Police, Apex Court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard-and-fast rule can be made out regarding applicability or a non-applicability of Section 34.

In Virendra Singh Vs. State of Madhya Pradesh, Apex Court observed that: (SCC p. 421, para 42)

Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of person act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that Section read with Section 34.

We shall now examine whether appellant No. 1 Shyam Prasad and appellant No. 2 Banti @ Rajendra Tiwari could be made liable for the aforementioned offence by operation of Section 34 of the IPC? It is trite that Section 34 of the IPC does not constitute a substantive offence, and is merely in the nature of a rule of evidence and liabilities fasten on a person who may have not been directly involved in the commission of the offence on the basis of a prearranged plan between that person and the person who actually committed the offence. In order to attract Section 34 of the IPC the following ingredients must be established:

(i) there was common intention in the sense of a prearranged plan; &

(ii) the person sought to be so held liable had participated in some manner in the act constituting the offence.

It is manifest that common intention refers to a prior concert or meeting of minds, and though it is not necessary that the existence of a distinct previous plan must be proved, as such common intention may develop on the spur of the moment, yet the meeting of minds must be prior to the commission of offence suggesting the existence of a prearranged plan. Therefore, in order to attract Section 34 IPC, the prosecution must, prima facie, reflect a common prior concert or planning amongst all the accused.

As per paragraph 2 of the statement of PW1 Kanwarlal, when motorcycle came in which Ramesh Chandra (PW7) and the deceased were sitting, appellant No. 1 Shyam Prasad affixed ''Kalpa'' on the road. At that time appellant No. 3 Raju @ Rajendra Prasad Mishra was having sword in his hand, Shyam Prasad exhorted him and, thereafter, Raju gave sword blow to the deceased and, thereafter, they ran away from the place of occurrence. PW5 Kaushalyabai also gave the similar statement in paragraph 1 of her deposition, PW7 Ramesh Chandra in paragraph 1 of his statement has deposed that his motorcycle came in front of the hut of Kanwarlal. They affixed ''Kalpa'' on the road to stop the motorcycle and then appellant No. 1 Shyam Prasad asked Raju @ Rajendra Prasad, appellant No. 3 that to see that motorcyclist could not ran away from here. At that moment the appellant No. 3 gave sword blow to the motorcyclist who caused injury to the deceased. PW8 Radheshyam in paragraph 1 of his statement has deposed that when Ramesh Chandra (PW7) and deceased were trying to run away from the place of occurrence, at the instance of appellant No. 1, the appellant No. 3 caused sword injury to the deceased. From the statements of PW1, PW5, PW7 & PW8, it is clear that there was dispute between Naresh Tiwari and Radheyshyam Meena in respect of share in garlic crop, which was lying at the submerge area of the dam. On the basis of report police party came there and when police party started chasing him, they left their tractor and other equipments and ran away from the spot. PW7 was on his motorcycle and before the house of Kanwarlal, the deceased asked him for help and he gave him lift and when they reached in front of the house of Kanwarlal, the appellants, who were very well aware that police party is chasing them and when PW7 and the victim reached in front of the hut of Kanwarlal, the appellants tried to stop them and in that spur of moment when the appellant No. 1 exhorted them the appellant No. 3, who was armed with sword gave sword blow to the deceased. From the statement of the eyewitnesses, it cannot be said that the appellants No. 1 and 2 had any prearranged plan to commit murder of deceased Samrath. At the time of incident, the appellants No. 1 was un-armed armed whereas the appellant No. 2 was not present. They were bare hand and against the appellant No. 2, the only allegation is that he exhorted and asked the appellant No. 3 to give some blow.

In the case of Ramashish Yadav and Others Vs. State of Bihar, in which in paragraph 3 their Lordships have observed as extracted herein below:-

Coming to the question of applicability of Section 34 for the murder of Tapeshwar, we find from the evidence of the three eyewitnesses that while Ram Pravesh Yadav and Ramanand Yadav caught hold of Tapeshwar, accused Samundar Yadav and Sheo Layak Yadav came with gandasa and gave blows on the head of Tapeshwar, as a result of which Tapeshwar died. Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of section 34 is the element of participation in action. The common intention implies acting in concert existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts.

From the aforesaid facts and circumstances of the case, it cannot be said that the appellants No. 1 and 3 had any common object to kill Samrath and with the said common object they have participated in the commission of offence. Thus to make them constructively liable u/s 34 of IPC, for murder, the prosecution had failed to prove that the above two accused persons had the common intention to commit murder of the deceased in common with the appellant No. 3, who actually committed the murder and who was their companion in joint criminal act or enterprise. Thus, they cannot be made liable u/s 34 of the IPC.

In such circumstances, it cannot be said that appellant No. 1 Shyam Prasad and appellant No. 2 Banti @ Rajendra Tiwari, are guilty of commission of offence u/s 34 of IPC. In absence of any evidence against them relating to common intention, they cannot be held liable with the aid of Section 34 of the IPC. Hence, their conviction for the commission of offence u/s 302/ 34 of IPC is liable to be set aside.

In view of the aforesaid, the impugned conviction and sentence of accused appellant No. 1 Shyam Prasad and appellant No. 2 Banti @ Rajendra Tiwari for commission of offence u/s 302/ 34 of IPC is set aside and they are acquitted of the charges levelled against them. Their bail bonds and surety bonds shall stands discharged. They be set at liberty forth with, if not required in any other case. The amount of fine, if deposited and paid to the victim shall not be refunded them.

As regards appellant No. 3 Rajendra @ Raju is concerned, there was no intention to cause that particular injury, which was sufficient in the ordinary course of nature to cause death of the deceased. No doubt, the doctor has stated that the injury was sufficient in the ordinary course of nature to cause death of the deceased. From collective analysis and examination of the evidence on record, it is clear that Rajendra @ Raju had absolutely no immediate motive to kill the deceased and did not give him the blow with intention to kill him or with knowledge that it was likely to cause death. Under these circumstances, we find it difficult to hold that the appellant No. 3 intended to cause that particular injury which was sufficient in the ordinary course of nature to cause death.

Having given our earnest consideration, we think that it is not a case where Section 302/ 34 IPC is attracted. However, in causing the fatal injury the accused must be attributed the knowledge that he was likely to cause death. In such event, the offence committed by him would be punishable u/s 304 Part-II of the IPC.

Accordingly, we set aside the conviction and sentence of appellant No. 3 Rajendra @ Raju u/s 302 of the IPC and the sentence of imprisonment of life. Instead we convict him u/s 304 Part-II of the IPC. So far as the quantum of sentence is concerned, considering the fact that he is in jail for a period more than 10 years, which in our opinion, will sufficiently meet the ends of justice, therefore, he is sentenced to the period already undergone along with fine of Rs. 10,000/- as directed by the trial Court. In the result, the appeal is allowed in part to the extent as indicated hereinabove.