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2004 Supreme(SC) 116
2004(1) Supreme 745
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
State of M.P. -Appellant
versus
Deshraj and Ors. -Respondents
Criminal Appeal No. 1055 of 1997
Decided on 29-1-2004
Counsel for the Parties :
For the Appellant : Siddharth Dave, Advocate for Ms. Vibha Datta Makhija, Advocate.
For the Respondents : C.L. Sahu, Advocate.
IMPORTANT POINT
In order to bring home the charge of common intention, prosecution has to established by evidence whether direct or circumstantial that there was plan or meeting of mind of all accused to commit the offence for which they were charged with aid of Section 34 IPC be it pre-arranged or on spur of moment.
Headnote:Indian Penal Code, 1860-Section 302/34-Respondents 1 to 10 were charge-sheeted but trial Court convicted them u/s 323/34-State appeal was dismissed by High Court-Appeal-In a quarrel over the fare for bullock cart, accused armed with various weapons assaulted deceased and other prosecution party-Deceased died on spot and eight injuries found on him included fracture a skull which doctor opined was sufficient to cause death in normal course-Trial Court though holding the death homicidal held that there was no definite material which injury was inflicted by which accused and that some of the accused had also sustained injuries in the fight and thus case was not covered u/s 302/34 IPC-Principle of joint liability when criminal act done in common intention-Liability is to be found in existence of a common intention-Trial Court and High Court were not justified in holding offence committed was only u/s 323/34 IPC-It being a fight between accused, deceased and injured witnesses, offence would fall u/s 304 Part II IPC and sentence of 8 years imprisonment would do justice.
Held : The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34. When an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. Above being the legal position, the Trial Court and the High Court were not justified in holding that offence committed was under Section 323 read with Section 34 IPC. (Paras 6 and 7)
Applying the factual scenario noticed by the Trial Court and the High Court more particularly the fact that there was fight between accused and the deceased and the injured witnesses, and the injuries came to be inflicted in course of sudden quarrel, it would be appropriate to convict the respondents 2 to 10 under Section 304 Part II IPC. Custodial sentence of 8 years would meet the ends of justice. (Para 9)
JUDGMENT
Arijit Pasayat, J.-In this appeal challenge is to the correctness of judgment rendered by a Division Bench of the Madhya Pradesh High Court which affirmed the conviction under Section 323 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC ) as recorded by the Trial Court in respect of respondents 1 to 10 and did not accept prosecutions plea that it was a case covered by Section 302 read with Section 34 IPC. Eleven persons faced trial and the Trial Court held A-11 Toran Singh to be not guilty. The accused persons were charged for commission of offences punishable under Section 302 read with Section 34 IPC and Section 323 IPC for allegedly committing homicidal death of one Ramdin (hereinafter referred to as the deceased ) and causing injuries on Harbhan (PW-5), Brijbhan (PW-10) and Bina Bai PW-9). Trial Court while acquitting accused Toran Singh held that the other accused persons were to be convicted under Section 323 read with Section 34 IPC. The State of Madhya Pradesh filed appeal before the Madhya Pradesh High Court and the same was dismissed by the impugned judgment. It appears respondent No. 1 Darua had died on 15.6.1986, and that being so, the appeal stands abated so far he is concerned.
2. Background facts as projected by the prosecution are as follows:
On 26.5.1980, about 8.15 a.m. PW-5 lodged first information report with the police regarding alleged occurrence which took place on the previous day i.e. 25.5.1980. There was an exchange of words between Harbhan (PW5) and Pratap Singh Thakur over payment of fare relating to hire of bullock cart. According to the informant, the rent was fixed at Rs. 15/- but Pratap Singh Thakur wanted to pay Rs. 13/-. When the exchange of words was going on, the accused persons armed with various weapons arrived there and accused Balkishan hit on the head of the deceased. The other accused persons assaulted him with various weapons. The deceased ran inside the house for protection. The accused persons continued to assault. When Brijbhan (PW-10) and Bina (PW-9) tried to rescue accused. Maharaj Singh struck on the head of Bina with farsa. Bhagwan Das and Badhraj struck her with lathis. Maharaj Singh gave a farsa blow on the held of the informant. Bhagwan Das and Badhraj struck on the head with lathi on his left arm while accused Halka struck lathi on the right arm. Jagna struck him on the shoulder and he fell down. Even then accused persons inflicted lathi blows Accused Ramdas also assaulted Brijbhan (PW-10). On hearing his cries for help, several villagers gathered. They also witnessed the assaults. Deceased breathed his last instantaneously and the informant became unconscious. Acting on the information given by the informant first information report was lodged. The dead body was sent for post-mortem and the injured persons were sent for medical examination. On the body of the deceased 8 injuries were noticed. One of them was the fracture of the skull. According to the doctor (PW-8) who conducted the post-mortem; the injuries on the skull were sufficient to cause death in the normal course. The accused persons pleaded innocence and false implication. Some of them were also examined and the medical reports indicated that they had sustained injuries. The Trial Court held that the death was homicidal; but there was no definite material as to which of the injuries was inflicted by which accused. Additionally, it was observed that there was fight between the parties and the accused persons had sustained injuries. In the absence of any documentary evidence to show as to which injury could be attributed to which accused, the case was not covered by Section 302 read with Section 34 IPC. But he held there being servant other injuries on the body of the deceased as noticed, case under Section 323/34 IPC was made out so far as the deceased is concerned, as well as injuries noticed on PWs. 5, 9 and 10. As there was no definite material, so far accused Toran is concerned, h
