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SUPREME COURT OF INDIA
Mohan M. Shantanagoudar, K. M. Joseph, JJ.
Virender - Appellant
Versus
State of Haryana - Respondent
CRIMINAL APPEAL NO. 1339 OF 2010
Decided On : 16-12-2019
(A) Indian Penal Code, 1860 – Section 34 – Common intention – In order to invoke principle of joint liability in commission of a criminal act as laid down in Section 34, prosecution should show that criminal act in question was done by one of accused persons in furtherance of common intention of all – If this is shown, liability for offence may be imposed on any one of persons in same manner as if act was done by him alone – It may be difficult to procure direct evidence to prove intention of an individual, and in most cases it has to be inferred from facts and relevant circumstances of case – Common intention may be through a pre-arranged plan, or it may be generated just prior to incident – Just as a combination of persons sharing same common object is one of features of an unlawful assembly, so is existence of a combination of persons sharing same common intention one of features of Section 34. (Para 11)
(B) Indian Penal Code, 1860 – Section 34 – Common intention – Common intention denotes action in concert and prior meeting of minds – Acts may be different and may vary in their character, but they are all actuated by same common intention – However, prior concert in sense of a distinct previous plan is not necessary to be proved – Common intention to bring about a particular result may well develop on spot as between a number of persons – Question as to whether there is any common intention or not depends upon inference to be drawn from proven facts and circumstances of each case – Totality of circumstances must be taken into consideration in arriving at conclusion whether accused persons had common intention to commit offence with which they could be convicted. (Para 12)
(C) Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – Conviction and sentence – From post-mortem report and evidence of doctor, it is clear that death was caused due to incised injuries, of such a nature which could have been caused by axe and sickle carried by other two accused – Other two injuries, being a laceration and an abrasion, which could possibly be attributed to appellant, may even have been a result of deceased falling to ground, since injuries such as bruises, abrasions and lacerations may very well be sustained as a result of a fall – There does not appear to be strong evidence of active participation of appellant in offence – Prosecution has not proved its case beyond reasonable doubt about active involvement of appellant in offence in question through any overt act – Appellant had no specific motive to participate in commission of offence, did not have any rivalry with deceased or his family and has not been shown to be a friend, relative or hireling of other two accused – Prosecution has failed to prove any common intention on appellant’s part, inasmuch as there is no hint of any motive or reason for him to have either participated in pre-planning murder of deceased, or to develop common intention to do so while present at spot of offence – Both Courts have concluded against appellant merely on assumptions and conjectures and not on reliable evidence, in spite of prosecution having failed to discharge its burden to prove case against appellant beyond reasonable doubt – Evidence against appellant is shaky and insufficient to bring home guilt against him – Benefit of doubt must enure to him – Judgment of conviction passed by Trial Court and confirmed by High Court as against appellant set aside and appellant acquitted from charges levelled against him. (Paras 9, 10, 13 and 14)
Facts of the case:
Present appeal is presented questioning the judgment dated 28.07.2009 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 168-DB of 2001, confirming the judgment of Sessions Court passed in Sessions Case No. 5 of 2000, convicting appellant/accused along with two other accused for the offence under Section 302 read with Section 34 of Indian Penal Code.
Findings of Court:
Appellant herein had no specific motive to participate in the commission of the offence, did not have any rivalry with the deceased or his family, and has not been shown to be a friend, relative or hireling of the other two accused, we are of the considered opinion that prosecution has failed to prove any common intention on appellant’s part, inasmuch as there is no hint of any motive or reason for him to have either participated in pre-planning murder of the deceased, or to develop the common intention to do so while present at the spot of the offence.
Result : Appeal allowed.
JUDGMENT
MOHAN M. SHANTANAGOUDAR, J.
This appeal is presented questioning the judgment dated 28.07.2009 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 168-DB of 2001, confirming the judgment of the Sessions Court, Narnaul dated 16.02.2001 passed in Sessions Case No. 5 of 2000, convicting the appellant/accused along with two other accused for the offence under Section 302 read with Section 34 of the Indian Penal Code (hereinafter “IPC”).
2. The case of the prosecution in brief is that on the intervening night between 6/7.11.1999, the first informant, Suresh Kumar, and his brother Krishan Kumar (the deceased), had gone to their field, which they had taken on Batai, for irrigation purposes; at about 1:30/2:00 AM on 07.11.1999, the informant sent Krishan Kumar to verify the water flow in the channel which passed through the ‘Dol’ of the field of Accused No.3 Hawa Singh; when Krishan Kumar was near his tubewell (situated near the middle of Hawa Singh’s field), the first informant heard noises of abuses, and on reaching the said place he saw Hawa Singh armed with a kulhari (axe), Accused No.1 Satpal armed with a dantali (sickle), and Accused No.2 Virender, the appellant herein, armed with a lathi; and Hawa Singh raised a cry exhorting that the deceased should be taught a lesson. Thereafter, Hawa Singh gave an axe blow to the deceased on the right shoulder, Satpal aimed two sickle blows on the head of the deceased which, however, fell on his left arm, and the appellant gave a lathi blow on the left knee of the deceased, who fell to the ground. At that point of time, Hawa Singh gave the deceased an axe blow on his chest, and Satpal gave him a sickle blow on the left knee. When the first informant raised a hue and cry, the uncle of the first informant, Jugal Kishore, came to the spot, and also witnessed the incident. Thereafter, the accused ran away from the scene. The first information report was lodged on the morning of 07.11.1999. As mentioned supra, both the Courts convicted all the three accused for the offence punishable under Section 302 read with Section 34 of the IPC.
3. The other two accused, namely Hawa Singh and Satpal, seem to have not filed appeals against the same, accepting the judgment passed by the High Court. It is brought to our notice that those accused have already undergone their sentence, and have been released from custody.
The appellant herein was released on bail by this Court on 26.07.2010.
4. Heard Mr. Naresh Kaushik, learned counsel appearing on behalf of the appellant, and Mr. Anish Kumar Gupta, learned Additional Advocate General appearing for the respondent-State.
5. The case of the prosecution mainly rests on the evidence of PWs 14 and 15, who were the eye-witnesses of the incident. PW-14, the first informant, is the brother of the deceased, and PW-15 is their uncle, who had arrived at the scene after hearing the cries of the first informant.
6. The appellant herein was convicted for the offence punishable under Section 302, IPC with the aid of Section 34, IPC, inasmuch as both the Courts concluded that the appellant had shared the common intention to murder the deceased with the other two accused.
7. It has been shown that Accused No.3, Hawa Singh had a motive to commit the murder of the deceased, inasmuch as he was eyeing the property which was being cultivated by the deceased on a Batai basis, and though Hawa Singh had requested the landlord to give the land on Batai basis to him, the deceased had secured the land instead. It was in this context that the murder was committed through the overt acts of the two accused other than the appellant. The moot question, however, is whether the appellant herein also participated in the offence, especially since he has not been shown to be a friend or relative of the other accused, or to have any specific motive for murdering the deceased.
8. In this regard, we would first like to turn our attention to the nature of injuries suffered
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