Equivalent Citation: AIR1971SC1444, 1971CriLJ1132, (1971)3SCC471, 1971(III)UJ357(SC),

1971(4)WLN37

IN THE SUPREME COURT OF INDIA

Decided On: 08.04.1971

Appellants: Devi Lal and Anr.

Hon'ble Judges:
A.N. Ray and C.A. Vaidialingam, JJ.

Subject: Criminal

Catch Words

Mentioned IN

Acts/Rules/Orders:
Indian Penal Code - Sections 34, 148, 149, 302 and 307

Case Note:
Criminal – Appeal against conviction for offence under Sections 302/34 – Enmity existed
between accused and the deceased – Appellant No. 1 gave a lathi blow on the head of
deceased and appellant No. 2 beat the deceased resulting in his death – But both the Trial
Court and High Court had held that both the appellants were not seen anywhere near the
scene of occurrence – Held, Session Court fell in error in convicting appellant under
Sections 302/34 as when a number of persons assault another with a stick mercilessly their
intention can only be to murder that man or at least they should know that they were likely
to cause death of person concerned and it would be relevant under Section 149 and 34.

Case Note:
Penal Code - Sections 34 & 149--Common intention--Distinction between two sections.

The distinction between Section 34 and 149 of the Indian Penal Code was not clearly noticed by
the Sessions Court and the High Court did not deal with this point at all. Under Section 34 when
a criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the tame manner as if it were done by him alone. The words
"in furtherance of the common intention of all" are a most essential part of Section 34 of the
Indian Penal Code. It is common intention to commit the crime actually committed. This
common intention is anterior in the time to the commission of the crime. Common intention
means a pre-arranged plan. On the other hand, Section 149 of the Indian Penal Code speaks of an
offence being committed by any member of unlawful a semely in prosecution of the common
object of that assembly. The distinction between "common intention" under Section 34 and
"common object" under Section 149 is of vital importance. The Sessions Court fell into the error
of convicting the appellants under Section 302 read with Section 34 of the Indian Penal Code by
holding that "if a number of persons assault another with a stick mercilessly their intention can
only be to murder that man or at least they should know that they are likely to cause death of the
person concerned." The aspect of their being likely to cause death would be relevant under
Section 149 and not under Section 34 of the Indian Penal Code for the obvious reason that under
Section 34 it has to be established that there was the common intention before the participation
by the accused.

JUDGMENT

A.N. Ray, J.

1. This is an appeal by special leave from the judgment dated 6 May, 1968 of the High Court of
Rajasthan convicting the appellants Devi Lal and Bihari Under Section 302 read with Section 34
of the Indian Penal Code and sentencing them to imprisonment for life.

2. There were seven accused in the case. The accused were Devi Lal, Brijlal, Jagram, Bihari,
Mukhtiar Singh, Bahadur and Nathu. The Sessions Court tried the accused for offences Under
Sections 148, 307/149 and 302/149 of the Indian Penal Code. The Sessions Court convicted Devi
Lal, Jagram and Bihari Under Section 302 read with Section 34 of the Indian Penal Code and
sentenced each of them to imprisonment for life. The other accused were acquitted.

3. The State of Rajasthan preferred an appeal against the acquittal. The High Court dismissed the
appeal of the State against accused Brijlal and Nathu and admitted the appeal as against the other
accused.

4. The High Court maintained the conviction of the appellants Devi Lal and Bihari Under
Section 302 read with Section 34 of the Indian Penal Code and their sentence to imprisonment
for life. The conviction of Jagaram Under Section 302/34 of the Indian Penal Code sentencing
him to imprisonment for life was set aside. The appeal of the State was dismissed.

5. The prosecution case was this. Around mid-night of 11 June, 1966 Dhannaram and Sultan
went to a liquor shop at village Dhaulatpura. Dhanna ram is the nephew of Motaram and Sultan
is Motaram's son. There were two groups. One was Motaram's and the other was of Binjaram and
Nathuram. There was enmity between the two groups. When they reached near the house of
Surja, accused Brijlal and his brother Ladu met them. Brijlal and Ladu are sons of Binjaram.
There were exchanges of verbal abuses between the two groups. Ladu gave a blow with the butt
end of the gun on the eye of Dhanna-Ram. Dhannaram had an axe with which he gave a blow to
Ladu. Ladu fired his gun. Ladu was carried to Government Hospital at Ganganagar and was
admitted there. On the following day 12 June, 1966 at about 7 am. Motaram, his son Brijlal P.W.
1 and Dhanna P.W. 3 nephew of Motaram all went to the bus stand to make a report at the police
station Hindumalkote. All the seven accused formed an unlawful assembly. Accused Brijlal and
Nathu carried guns, while the other accused carried lathis. Nathu shouted that enemies were
standing that they should be attacked. Thereafter Nathu fired his gun Brijlal also fired his gun
None was hit. Motaram, his son Brijlal and his nephew Dhanna ran to save their lives. Brijlal and
Dhanna Managed to jump away. Motaram was encircled by the accused. Devi Lal gave a lathi
blow on his head. The other accused beat him. Motaram received 14 injuries. His condition
became precarious. All the accused ran away. Brijlal and Dhannaram afterwards came to
Motaram. They found Motaram in a serious condition. They took him to the hospital at
Ganganagar. On the way Motaram expired.

6. Among the accused Brijlal, Jagaram and the appellant Bihari are sons of Binjaram. There was
enmity between Motaram on the one hand and Binjaram and accused Nathu on the other.

7. There were four prosecution eye-witnesses of the alleged occurrence. They were Brijlal P.W.
1, Dhannaram P.W. 3, Birbal, P.W. 2 and Hariram P.W. 4. Witness Brijlal is the son of Motaram.
He is described as witness, Brijlal to avoid confusion with accused Brijlal son of Bijaram.
Dhannram is the nephew of Motaram. Witness Brijlal's father Motaram deceased had appeared as
a witness for the prosecution in a case against the accused Bihari and Brijlal son of Binjaram.
The case was Under Section 307 of the Indian Penal Code. Witness Brijlal further said that
Motaram had appeared as a prosecution witness in another case Under Section 307 of the Indian
Penal Code against the appellant Devi Lal. Witness Brijlal's evidence in short was this. Mukhtiar
Singh was convicted for causing injuries to witness Brijlal and was sentenced to one years's
rigorous imprisonment. Motaram had given evidence in a murder case against the accused Brijlal
& Bihari. Motaram had also been convicted but the witness could not say in which case it was.
Witness Brijlal had also been convicted in a criminal case where accused Mukhtiar Singh and
Devi Lal had given evidence against Brijlal.

8. The evidence of Dhannaram P.W. 3 was that a criminal case was pending against him and
witness Brijlal with regard to injury caused to Ladu on the night previous to the date of incident.
The High Court therefore held that the evidence of Brijlal and Dhannaram showed that there was
old enmity between the deceased Motaram on the one hand and the accused Bihari and Brijlal
sons of Binjaram on the other. The evidence of Brij Lal and Dhannaram was therefore found by
the High Court to be of a highly interested and inimical nature.

9. As to other witnesses Birbal and Hariram the High Court said that though Birbal was not
related to Motaram in any manner, Birbal's evidence was "to be treated with caution" and was
"not to be believed in to to". As to Hariram P.W. 4 the High Court said that the witness did not
say anything as to what took place at the bus stand and Hariram had not been believed by the
trial Court and the prosecution did not place much reliance on his evidence. The result is that
there is no eye-witness on whose testimony any reliance can be placed.

10. At this stage it may be noticed that the trial Court did not accept the evidence of the
prosecution witnesses and rejected the prosecution case that Brijlal and Nathu had gone to the
bus stand with guns. The result was that of the seven accused the presence of two was totally
disbelieved by the trial Court. The Sessions Court acquitted Brijlal. Mukhtiar Singh, Bahadur
and Nathu but convicted Devi Lal, Jagram and Bihari. The High Court found that the prosecution
evidence was totally false in regard to the version of Brijlal and Nathu going to the bus stand
with guns as also the version that Nathu incited the other accused to open the attack. As to Devi
Lal, Bihari and Jagram the High Court said that though Brijlal and Dhannaram were highly
interested witnesses who bore enmity against some of the accused yet all the witnesses stated
that the attack was opened by the appellants Devi Lal and Bihari and therefore the conviction of
Devi Lal and Bihari was upheld by the High Court. The High Court set aside the conviction of
Jagram on the ground that in view of the finding of the Sessions Court that the evidence of the
prosecution witnesses was not reliable in regard to the accused Mukhtiar Singh and Bahadur, the
same result should follow with regard to Jagram.

11. Apart from the four eye-witnesses the other three witnesses were the doctor and two police
officers. None of them could speak of the occurrence. The High Court having found two of the
witnesses to be interested and inimical, another witness not believable in toto and another
witness who was not present at the occurrence fell into error of relying on the self same
witnesses to hold that the appellants were present at the occurrence. The High Court should not
have proceeded without evidence aliunde of the presence of the appellants at the occurrence and
their participation in the offence.

12. In the present case, it appears that the core of the prosecution case that Brijlal and Nathu
carried guns and were present at the bus stand and that Nathu shouted that the enemies should be
attacked & that Nathu fired the gun was disbelieved. A new prosecution case could not be
reconstructed in the manner suggested in the judgment of the High Court. The High Court
disbelieved that among the seven accused one was armed with rifle and the other with a gun, that
Nathu was present and instigated and on his instigation accused Brijal fired. It could not
therefore be believed that on account of firing the witness and Motaram ran away to save their
lives. The High Court also disbelieved that accused Brijlal and Nathu the two gunmen stood
there and threatened the witnesses not to approach the accused, that the five accused caused 14
injuries. The Sessions Court held that the three accused caused the injuries. The High Court held
that two of the accused caused the injuries. It was not noticed by the High Court that the
improvement of the individual part ascribed to the two appellants was not in the first information
report and was a subsequent improvement.

13. Counsel for the appellants was correct in raising the principal contention in the fore-front that
the accused did never know that this was the prosecution case. It would rightly be said that if the
bedrock of the prosecution case that Brijlal and Nathu came armed with guns to throw a
challenge to Mota-Ram and his sons could not prove as a fact, the whole prosecution case would
fall like a pack of cards. In criminal trials it is of prime importance for the accused to know as to
what the exact prosecution case is. If the pivot of the prosecution case is not accepted a new
prosecution case cannot be made to imperil defence. In the present ease, two of the accused are
held both by the trial Court and by the High Court not to have been anywhere near the scene of
occurrence. The entire prosecution case was, that these two persons pointed to the enemies,
namely Motaram and his son and nephew. The further prosecution case was those two persons
gave the order to the accused to attack them. Those two persons opened the gun fire. Therefore
when those two persons are found both by the Sessions Court and the High Court not to have
been present the whole prosecution case changed colour and becomes unworthy of belief.

14. The distinction between Sections 34 and 149 of the Indian Penal Code was not clearly
noticed by the Sessions Court and the High Court did not deal with this point at all. Under
Section 34 when a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if it were done
by him alone. The words "in furtherance of the common intention of all" are a most essential part
of Section 34 of the Indian Penal Code, It is common intention to commit the crime actually
committed. This common intention is anterior in time to the commission of the crime. Common
intention means a pre-arranged plan. On the other hand, Section 149 of the Indian Penal Code
speaks of an offence being committed by any member of an unlawful assembly in prosecution of
the common object of that assembly. The distinction between "common intention" Under Section
34 and "common object" Under Section 149 is of vital importance. The Sessions Court fell into
the error of convicting the appellants Under Section 302 read with Section 34 of the Indian Penal
Code by holding that "if a number of persons assault another with a stick mercilessly their
intention can only be to murder that man or at least they should know that they are likely to
cause death of the person concerned". This aspect of their being likely to cause death would be
relevant Under Section 149 and not Under Section 34 of the Indian Penal Code for the obvious
reason that Under Section 34 it has to be established that there was the common intention before
the participation by the accused.

15. For these reasons, the appeal is accepted. The judgment of the High Court is set aside. The
accused are set at liberty.