191

Suresh v. State of U.P.

(2001) 3 SCC 673

THOMAS, J. - Section 34 of the Indian Penal Code is a very commonly invoked provision in
criminal cases. With a plethora of judicial decisions rendered on the subject the contours of
its ambit seem well-nigh delineated. Nonetheless, when these appeals were heard a two-
Judge Bench felt the need to take a re-look at the provision as to whether and if so to what
extent it can be invoked as an aid in this case. Hence these appeals were heard by a larger
Bench.
2. In one of the appeals A-1 Suresh and his brother-in-law, A-2 Ramji, are fighting their
last chance to get extricated from the death penalty imposed on them by a Session Court
which was confirmed by a Division Bench of the High Court. In the other appeal Pavitri Devi,
the wife of A-1 Suresh (also sister of A-2 Ramji) is struggling to sustain the acquittal secured
by her from the High Court in reversal of the conviction for murder ordered by the Sessions
Court with the aid of Section 34 IPC.
3. On the night of 5-10-1996 when Ramesh (brother of the appellant Suresh) and his
wife and children went to bed as usual, they would have had no foreboding that it was going
to be the last night they were sleeping on this terrestrial terrain. But after they, in their
sleep, crossed the midnight line and when the half crescent moon appeared with its waned
glow above their house, the night turned red by the bloodiest killing spree befallen on the
entire family. The motley population of that small house was hacked to pieces by armed
assailants, leaving none, but a single tiny tot, alive. The sole survivor of the gory carnage
could have seen what happened inside his sweet home only in the night which itself turned
carmine. He narrated the tale before the Sessions Court with the visible scars of the wounds
he sustained on his person.
4. That infant witness (PW 3 Jitendra) told the trial court that he saw his uncle (A-1
Suresh) in the company of his brother-in-law (A-2 Ramji) acting like demons, cutting the
sleeping children with axe and chopper. He also said that his aunt (A-3 Pavitri Devi) clutched
the tuft of his mother’s hair and yelled like a demoness in thirst for the blood of the entire
family.
5. Lalji (PW 1), the uncle of the decreased Ramesh (who is uncle of A-1 Suresh also) and
Amar Singh (PW 2) a neighbour gave evidence supporting the version of PW 3 Jitendra. But
the said two witnesses did not attribute any overt act to Pavitri Devi except saying that she
too was present near the scene of occurrence. The house of the accused was situated not
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for away from the scene of occurrence, but across the road which abuts the house of the
decreased.
6. The doctor (PW 5 C.M. Tiwari) who conducted the autopsy on the dead bodies of all
the deceased described the horrifying picture of the mauled bodies. The youngest of the
victims was one-year-old child whose skull was cut into two and the brain was torn as under.
The next was a three-year-old male child who was killed with his neck axed and the spinal
cord, trachea and the larynx were snipped. The next in line was PW 3 Jitendra – a seven year
old child. (His injuries can be separately stated). His immediate next elder was Monisha-a
nine-year-old female child, who too was axed on the neck, mouth and chest with her spinal
cord cut into two.
7. The mother of those little children, Ganga Devi, was inflicted six injuries which
resulted in her skull being broken into pieces. The last was Ramesh – the bread-winner of
the family, who was the father of the children. Four wounds were inflicted on him. All of
them were on the neck and above that. The injuries on Ramesh, when put together, neared
just short of decapitation.
8. PW 3 Jitendra had three incised wounds on the scapular region, but the doctor who
attended on him (PW 6 S.K. Verma) did not probe into the depth of one of them, presumably
because of the fear that he might require an immediate surgical intervention. However, he
was not destined to die and hence the injuries on him did not turn fatal.
9. The motive for the above dastardly massacre was the greed for a bit of land lying
adjacent to the house compound of the deceased which A-I Suresh claimed to be his. But the
deceased Ramesh clung to that land and it resulted in burgeoning animosity in the mind of
Suresh which eventually grew alarmingly wild.
10. The evidence of PW 1 Lalji and PW 2 Amar Singh was considered by the Sessions
Court in the light of various contentions raised by the counsel for the accused. The trial
Judge found the said evidence reliable. The Division bench of the High Court considered the
said evidence over again and they did not see any reason to dissent from the finding made
by the trail court: The evidence of PW 3 Jitendra, the sole survivor of the carnage, was
evaluated with greater care as he was an infant of seven years. Learned Judges of the
Division Bench of the High Court accepted the evidence of PW 3 only to the extent it secured
corroboration from the testimony of P.Ws 1 and 2.
11. Though Mr. K.B. Sinha, learned Senior Counsel made an endeavour to make some
tears into the fabric of the testimony of P.Ws 1 and 2, he failed to satisfy us that there is any
infirmity in the findings recorded by the two courts regarding the reliability of the evidence
193

of those two witnesses. As the learned Senior Counsel found it difficult to turn the table
regarding the evidence against the accused which is formidable as well as trustworthy, he
focused on two aspects. First is that acquittal of Pavitri Devi does not warrant interference
from this court. Second is that this is not a case belonging to the category which compels the
Court to award death penalty to the two appellants, Suresh and Ramji.
12. We will now deal with the role played by Pavitri Devi to see whether the Court can
interfere with the acquittal order passed in her favour by the High Court. P.W. 3 said that
while he was sleeping the blood gushed out of the wounds sustained by his father reached
his mouth and when he woke up he saw the incident. According to him, Pavitri Devi caught
hold of his mother’s hair and pulled her up, thereafter she went outside and exhorted that
everybody should be killed. But P.Ws 1 and 2 did not support the aforesaid version
pertaining to Pavitri Devi. According to them, when they reached the scene of occurrence
Pavitri Devi was standing in front of the house of the deceased while the other two were
inside the house engaged in the act of inflicting blows on the victims.
13. The position which the prosecution succeeded in establishing against A-3 Pavitri
Devi is that she was also present at the scene of occurrence. Learned counsel for the State
contended that such presence was in furtherance of the common intention of the three
accused to commit the murders and hence she can as well be convicted for the murders
under Section 302 IPC with the aid of Section 34 IPC. Mr. K.B. Sinha, learned counsel
contended that if Section 34 IPC is to be invoked against Pavitri Devi the prosecution should
have established that she had done some overt act in furtherance of the common intention.
14. We heard arguments at length on the ambit of Section 34 IPC. We have to consider
whether the accused who is sought to be convicted with the aid of that section, should have
done some act, even assuming that the said accused also shared the common intention with
the other accused.
15. Section 34 reads thus:
34.Acts done by several persons in furtherance of common intention: 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.
16. As the section speaks of doing “a criminal act by several persons” we have to look at
Section 33 IPC which defines the “Act”. As per it, the word “act” denotes as well a series of
acts as a single act. This means a criminal act can be a single act or it can be the
conglomeration of a series of acts. How can a criminal act be done by several persons?
 194

17. In this context, a reference to Sections 35, 37 and 38 IPC, in juxtaposition with
Section 34, is of advantage. Those four provisions can be said to belong to one cognate
group wherein different positions when more than one person participating in the
commission of one criminal act are adumbrated. Section 35 says that when an act is done by
several persons each of such persons who joins in the act with mens rea is liable for the act
“in the same manner as if the act were done by him alone with that knowledge or
intention”. The section differs from Section 34 only regarding one postulate. In the place of
common intention of all such person (in furtherance of which the criminal act is done), as is
required in Section 34, it is enough that each participant who joins others in doing the
criminal act, has the required men rea.
18. Section 37 deals with the commission of an offence “by means of several acts”. The
section renders anyone who intentionally co-operates in the commission of that offence “by
doing any one of those acts” to be liable for that offence. Section 38 also shows another
facet of one criminal act being done by several persons without connecting the common
bond i.e., “in furtherance of the common intention of all”. In such a case, they would be
guilty of different offence or offences but not for the same offence.
19. Hence, under Section 34, one criminal act, composed of more than one act, can be
committed by more than one persons and if such commission is in furtherance of the
common intention of all of them, each would be liable for the criminal act so committed.
20. To understand the section better, it is useful to recast it in a different form by way of
an illustration. This would highlight the difference when several persons do not participate
in the crime committed by only one person even though there was common intention of all
the several persons. Suppose, a section was drafted like this: “When a criminal act is done by
one person in furtherance of the common intention of several persons, each of such several
persons is liable for that act in the same manner as if it were done by all such persons.”
21. Obviously Section 34 is not meant to cover a situation which may fall within the
fictiously concocted section caricatured above. In that concocted provision, the co-accused
need not do anything because the act done by the principal accused would nail the co-
accused also on the ground that such act was done by that single person in furtherance of
the common intention of all the several persons. But Section 34 is intended to meet a
situation wherein all the co-accused have also done something to constitute the commission
of a criminal act.
22. Even the concept of presence of the co-accused at the scene is not a necessary
requirement to attract Section 34, e.g., the co-accused can remain a little away and supply
weapons to the participating accused either by throwing or by catapulting them so that they
can be used to inflict injuries on the targeted person. Another illustration, with advancement
of electronic equipment can be etched like this: One of such persons, in furtherance of the
common intention overseeing the actions from a distance through binoculars can give
instructions to the other accused through mobile phones as to how effectively the common
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intention can be implemented. We do not find any reason why Section 34 cannot apply in
the case of those two persons indicated in the illustrations.
23. Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act
(consisting of a series of acts) should have been done, not by one person. (2) Doing of every
such individual act cumulatively resulting in the commission of criminal offence should have
been in furtherance of the common intention of all such persons.
24. Looking at the first postulate pointed out above, the accused who is to be fastened
with liability on the strength of Section 34 IPC should have done some act which has nexus
with the offence. Such an act need not be very substantial, it is enough that the act is only
for guarding the scene for facilitating the crime. The act need not necessary be overt, even if
it is only a covert act it is enough, provided such a covert act is proved to have been done by
the co-accused in furtherance of the common intention. Even an omission can, in certain
circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned
in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a
certain situation can amount to an act, e.g., a co-accused, standing near the victim face to
face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow.
The co-accused, who could have alerted the victim to move away to escape from the
onslaught deliberately refrained from doing so with the idea that the blow should fall on the
victim. Such omission can also be termed as an act in given situation. Hence an act, whether
overt or covert, is indispensable to be done by a co-accused to be fastened with the liability
under the section. But if no such act is done by a person, even if he has common intention
with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for
convicting that person. In other words, the accused who only keeps the common intention in
his mind, but does not do any act at the scene, cannot be convicted with the aid of Section
34 IPC.
25. There may be other provisions in the IPC like Section 120-B or Section 109 which
could then be invoked to catch such non-participating accused. Thus participation in the
crime in furtherance of the common intention is a sine qua non Section 34 IPC. Exhortation
to other accused, even guarding the scene etc. would amount to participation. Of course,
when the allegation against an accused is that he participated in the crime by oral
exhortation or by guarding the scene the court has to evaluate the evidence very carefully
for deciding whether that person had really done any such act.
26. A Division Bench of the Madras High Court has said as early as in 1923 that
“evidence of some distinct act by the accused, which can be regarded as part of the criminal
act in question, must be required to justify the application on Section 34 IPC.” (vide Aydroos
v. Emperor AIR 1923 Mad. 187).
27. In Barendra Kumar Ghosh v. King Emperor the Judicial Committee after referring to
the cognate provision adverted to above, held thus:
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Read together, these sections are reasonably plain. Section 34 deals with the doing of
separate acts, similar or diverse, by several persons; if all are done in furtherance of a
common intention, each person is liable, for the result of them all, as if he had done
them himself, for that act” and ‘the act’ in the latter part of the section must include the
whole action covered by ‘a criminal act’ in the first part, because they refer to it.
28. We have come across the observations made by another Judicial Committee of the
Privy Council of equal strength in Mahbub Shah v. Emperor. The observation is that Section
34 IPC can be invoked if it is shown that the criminal act was done by one of the accused in
furtherance of the common intention of all. On the fact situation their Lordships did not
have to consider the other component of the section. Hence the said observation cannot be
understood to have obviated the necessity of proving that “the criminal act was done by
several persons” which is a component of Section 34 IPC.
29. In Pandurang v. State of Hyderabad, Vivian Bose. J., speaking for a three-Judge
bench of this court focused on the second component in Section 34 IPC i.e., “furtherance of
the common intention”. There was no need for the Bench to consider about the acts
committed by the accused charged, in order to ascertain whether all the accused committed
the criminal act involved therein. In other words, the first postulate was not a question
which came up for consideration in the case. Hence the said decision, cited by both sides for
supporting their respective contention, is not of much use in the case.
30. Mr. Pramod Swarup, learned counsel for the State invited our attention to the
decision of this Court in State of U.P. v. Iftikhar Khan [(1973) 1 SCC 512] in which it was
observed that to attract Section 34 IPC it is not necessary that any overt act should have
been done by the co-accused. In that case, four accused persons were convicted on a fact
situation that two of them were armed with pistols and the other two were armed with
lathis and all the four together walked in a body towards the deceased and after firing the
pistols at the deceased all the four together left the scene. The finding of fact in that case
was also the same. When an argument was made on behalf of those two persons who were
armed with lathis, that they did not do any overt act, this Court made the above
observation. From the facts of that case, it can be said that there was no act on behalf of the
two lathi holders although the deceased was killed with pistols alone. The criminal act in
that case was done by all the persons in furtherance of the common intention to finish the
deceased. Hence, the observation made by Vaidialingam, J., in the said case has to be
understood on the said peculiar facts.
31. It is difficult to conclude that a person, merely because he was present at or near the
scene, without doing anything more, without even carrying a weapon and without even
marching along with the other assailants, could also be convicted with the aid of Section 34
IPC for the offence committed by the other accused. In the present case, the FIR shows that
A-3 Pavitri Devi was standing on the road when the incident happened. Either she would
have reached on the road on hearing the sound of the commotion because her house is
situated very close to the scene, or she would have merely followed her husband and
197

brother out of curiosity since they were going armed with axe and choppers during the wee
hours of the night. It is not a necessary conclusion that she too would have accompanied the
other accused in furtherance of the common intention of all the three.
32. Mr. Pramod Swarup, learned counsel for the State contented that if she remained at
the scene without sharing the common intention, she would have prevented the other two
accused from doing the ghastly acts because both of them were her husband and brother
respectively. The inaction of Pavitri Devi in doing so need not necessarily lead to the
conclusion that she shared a common intention with the others. There is nothing to show
that she had not earlier tried to dissuade her husband and brother from rushing to attack
the deceased.
33. Thus we are unable to hold that Pavitri Devi shared common intention with the
other accused and hence her remaining passively on the road is too insufficient for reversing
the order of acquittal passed by the High Court in order to convict her with the aid of Section
34 IPC.
34. Mr. K.B. Singh, learned Senior Counsel made an all out effort to save the convicted
appellants from death penalty. The trial court and the High Court have given very cogent
reasons and quite elaborately for choosing the extreme penalty. Knowing fully well that
death penalty is now restricted to the rarest of rare cases in which the lesser alternative is
unquestionably foreclosed as held by the Constitution Bench in Bachan Singh v. State of
Punjab [(1980) 2 SCC 684] we could not persuade ourselves in holding that the acts
committed by A-1 Suresh and A-2 Ramji should be pulled out of contours of the extremely
limited sphere. Mr. K.B. Sinha cited a number of decisions including Panchhi v. State of U.P.
[(1998) 7 SCC 177] in an endeavour to show that this Court had chosen to give the
alternative sentence inspite of the ferocity of the acts comparable with the facts in this case.
Even after bestowing our anxious consideration, we cannot persuade ourselves to hold that
this is not a rarest of rare cases in which the lesser alternative is unquestionably foreclosed.
35. Accordingly, we dismiss both the appeals.
SETHI, J. (for himself and Agrawal, J.)(Concurring)- We agree with the conclusions arrived at
by Brother Thomas, J. in his lucid judgment.
37. However, in view of the importance of the matter, in so far as the
interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to
express our views in the light of consistent legal approach on the subject throughout the
period of judicial pronouncements. For the applicability of Section 34 to a co-accused,
who is proved to have common intention, it is not the requirement of law that he should
have actually done something to incur the criminal liability with the aid of this section. It
is now well settled that no overt act is necessary to attract the applicability of Section 34
for a co-accused who is otherwise proved to be sharing common intention with the
ultimate act done by any one of the accused having such intention.
38. Section 34 of the Indian Penal Code recognises the principle of vicarious
liability in the criminal jurisprudence. It makes a person liable for action of an offence not
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committed by him but by another person with whom he shared the common intention. It is
a rule of evidence and does not create a substantive offence. The section gives statutory
recognition to the commonsense principle that if more than two persons intentionally do a
thing jointly, it is just the same as if each of them had done it individually. There is no
gainsaying that a common intention pre-supposes prior concert, which requires a pre-
arranged plan of the accused participating in an offence. Such a pre-concert or pre-
planning may develop on the spot or during the course of commission of the offence but
the crucial test is that such plan must precede the act constituting an offence. Common
intention can be formed previously or in the course of occurrence and on a spur of
moment. The existence of a common intention is a question of fact in each case to be
proved mainly as a matter of inference from the circumstances of the case.
39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter
referred to as “the Code”) is the element of participation in action resulting in the ultimate
“criminal act”. The “act” referred to in latter part of Section 34 means the ultimate criminal
act with which the accused is charged of sharing the common intention. The accused is,
therefore, made responsible for the ultimate criminal act by several persons in furtherance
of the common intention of all. The section does not envisage the separate act by all the
accused persons for becoming responsible for the ultimate done criminal act. If such an
interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
40. Participation in the crime in furtherance of the common intention cannot conceive
of some independent criminal act by all accused persons, besides the ultimate criminal act
because for that individual act law takes care of making such accused responsible under the
other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a
single act. What is required under law is that the accused persons sharing the common
intention must be physically present at the scene of occurrence and be shown to not have
dissuaded themselves from the intended criminal act for which they shared the common
intention. Culpability under Section 34 cannot be excluded by mere distance from the scene
of occurrence. The presumption of constructive intention, however, has to be arrived at only
when the court can, with judicial servitude, hold that the accused must have pre-conceived
result that ensued in furtherance of the common intention. A Division Bench of the Patna
High Court in Shatrughan Patar v. Emperor [AIR 1919 Patna 111] held that it is only when a
court with some certainty hold that a particular accused must have pre-conceived or pre-
meditated the result which ensued or acted in concert with others in order to bring about
that result, that Section 34 may be applied.
41. In Barendra Kumar Ghosh v. King Emperor [AIR 1925 PC 1] the Judicial Committee
dealt with the scope of Section 34 dealing with the acts done in furtherance of the common
intention, making all equally liable for the results of all the acts of others. It was observed:
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The words of Section.34 are not to be eviscerated by reading them in this exceedingly
limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and,
further, “act” includes omissions to act, for example, an omission to interfere in order to
prevent a murder being done before one’s very eyes. By Section 37, when any offence is
committed by means of several acts whoever intentionally co-operates in the
commission of that offence by doing any one of those acts, either singly or jointly with
any other person, commits that offence. Even if the appellant did nothing as he stood
outside the door, it is to be remembered that in crimes as in other things ‘they also serve
who only stand and wait’. By Section 38, when several persons are engaged or
concerned in the commission of a criminal act, they may be guilty of different offences
by means of that act. Read together, these sections are reasonably plain. Section 34
deals with the doing of separate acts, similar of diverse, by several persons; if all are
done in furtherance of a common intention, each person is liable for the result of them
all, as if he had done them himself, for ‘that act’ and ‘the act’ in the latter part of the
section must include the whole action covered by ‘a criminal act’ in the first part,
because they refer to it. Section 37 provides that, when several acts are done so as to
result together in the commission of an offence, the doing of any one of them, with an
intention to co-operate in the offence (which may not be the same as an intention
common to all), makes the actor liable to be punished for the commission of the
offence. Section 38 provides for different punishments for different offences as an
alternative to one punishment for one offence, whether the persons engaged or
concerned in the commission of a criminal act are set in motion by the one intention or
by the other. (Emphasis supplied)
Referring to the presumption arising out of Section 114 of the Evidence Act, the Privy
Council further held:
As to S.114, it is a provision which is only brought into operation when circumstances
amounting to abetment of a particular crime have first been proved, and then the
presence of the accused at the commission of that crime is proved in addition; Abhi
Misser v. Lachmi Narain [ILR (1900) 27 Cal.566]. Abetment does not in itself involve the
actual commission of the crime abetted. It is a crime apart. Section 114 deals with the
case where there has been the crime of abetment, but where also there has been actual
commission of the crime abetted and the abettor has been present thereat, and the
way in which it deals with such a case is this. Instead of the crime being still abetment
with circumstances of aggravation, the crime becomes the very crime abetted. The
section is evidentiary not punitory. Because participation de facto (as this case shows)
may sometimes be obscure in detail, it is established by the presumption juris et de jure
that actual presence plus prior abetment can mean nothing else but participation. The
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presumption raised by Section 114 brings the case within the ambit of Section 34.
(Emphasis supplied)
42. The classic case on the subject is the judgment of the Privy Council in Mahboob
Shah v. Emperor [AIR 1945 PC 118]. Referring to Section 34 prior to its amendment in 1870
wherein it was provided:
When a criminal act is done by several persons, each of such persons is liable for that
act in the same manner as if the act was done by him alone.
It was noticed that by amendment, the words “in furtherance of common intention of all”
were inserted after the word “persons” and before the word “each” so as to make the
object of Section clear. Dealing with the scope of Section, as it exists today, it was held:
Section 34 lays down a principle of joint liability in the doing of a criminal act. The
section does not say ‘the common intention of all’ nor does it say ‘an intention common
to all’. Under the section, the essence of that 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. To invoke the aid of Section 34 successfully, it must be
shown that the criminal act complained against was done by one of the accused persons
in the furtherance of the common intention of all; if this is shown, then liability for the
crime may be imposed on any one of the persons in the same manner as if the act were
one by him alone. This being the principle, it is clear to their Lordships that common
intention within the meaning of the section implies a pre-arranged 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. As has been often observed, it is
difficult if not impossible to procure direct evidence to prove the intention of an
individual; in most cases it has to be inferred from his act or conduct or other relevant
circumstances of the case. (Emphasis supplied)
43. A Full Bench of the Patna High Court in King Emperor v. Barendra Kumar Ghose [AIR
1924 Cal. 257] which was later approved by the Privy Council, dealt with the scope of Section
34 in extenso and noted its effects from all possible interpretations put by various High
Courts in the country and the distinguished authors on the subject. The Court did not agree
with the limited construction given by Stephen, J. in Emperor v. Nirmal Kanta Roy [ILR
(1914) 41 Cal.1072] and held that such an interpretation, if accepted, would lead to
disastrous results. Concurring with Mookerjee, J., and giving the section a wider view,
Richardson, J. observed:

It appears to me that Section 34 regards the act done as the united act of the immediate
perpetrator and his confederates present at the time and that the language used is
susceptible of that meaning. The language follows a common mode of speech. In R. v.
Salmon [1880 (6) QBD 79] three men had been negligently firing at a mark. One of them
- it was not known which - had unfortunately killed a boy in the rear of the mark. They
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were all held guilty of manslaughter. Lord Coleridge, C.J., said: ‘The death resulted from
the action of the three and they are all liable’. Stephen, J. said: ‘Firing a rifle’ under such
circumstances ‘is a highly dangerous act, and all are responsible; for they unite to fire at
the spot in question and they all omit to take any precautions whatsoever to prevent
danger.
Moreover, Sections 34, 35 and 37 must be read together, and the use in section 35 of
the phrase ‘each of such persons who joins in the act’ and in Section 37 of the
phrase, ‘doing any one of those acts, either singly or jointly with any other person’
indicates the true meaning of Section 34. So section 38 speaks of ‘several persons
engaged or concerned in a criminal act’. The different mode of expression may be
puzzling but the sections must, I think, be construed as enunciating a consistent
principle of liability. Otherwise the result would be chaotic.
To put it differently, an act is done by several persons when all are principals in the
doing of it, and it is immaterial whether they are principals in the first degree or
principals in the second degree, no distinction between the two categories being
recognised.
This view of Section 34 gives it an intelligible content in conformity with general notions.
The opposing view involves a distinction dependent on identity or similarity of act
which, if admissible at all, is wholly foreign to the law, both civil and criminal, and leads
nowhere.
44. Approving the judgments of the Privy Council in Barendra Kumar Ghose and
Mahboob Shah’s cases (supra) a three Judge Bench of this Court in Pandurang v. State of
Hyderabad [AIR 1955 SC 216] held that to attract the applicability of Section 34 of the Code
the prosecution is under an obligation to establish that there existed a common intention
which 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 all. This Court had in mind the ultimate act done in furtherance of the common
intention. In the absence of a pre-arranged plan and thus a common intention even if
several persons simultaneously attack a man and each one of them by having his individual
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. 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 or the other. The Court emphasised the sharing of the common
intention and not the individual acts of the persons constituting the crime. Even at the cost
of repetition it has to be emphasised that for proving the common intention it is necessary
either to have direct proof of prior concert or proof of circumstances which necessarily lead
 202

to that inference and “incriminating facts must be incompatible with the innocence of the
accused and incapable of explanation or any other reasonable hypothesis”. Common
intention, arising at any time prior to the criminal act, as contemplated under Section 34 of
the Code, can thus be proved by circumstantial evidence.
45. In Shreekantiah Ramayya Munipalli v. State of Bombay [AIR 1955 SC 287] this
Court held:
It is true there must be some sort of preliminary planning which may or may not be at
the scene of the crime and which may have taken place long beforehand, but there
must be added to it the element of physical presence at the scene of occurrence
coupled with actual participation which, of course, can be of a passive character such as
standing by a door, provided that is done with the intention of assisting in furtherance of
the common intention of them all and there is a readiness to play his part in the pre-
arranged plan when the time comes for him to act.(Emphasis supplied)
46. This Court again in Tukaram Ganapat Pandare v. State of Maharashtra [AIR 1974
SC 514] reiterated that Section 34 lays down the rule of joint responsibility for criminal act
performed by a plurality of persons and even mere distance from the scene of crime cannot
exclude the culpability of the offence. “Criminal sharing, overt or covert, by active presence
or by distant direction making out a certain measure of jointness in the commission of the
act is the essence of Section 34".
47. In a case where the deceased was murdered by one of the two accused with a sharp
edged weapon at 10.30 p.m. while he was sleeping on a cot in his house while the other
accused, his brother, without taking part stood by with a spear in his hand to overcome any
outside interference with the attainment of the criminal act and both the accused ran away
together after the murder, this Court in Lalai v. State of U.P. [AIR 1974 SC 2118] held that
these facts had a sufficient bearing on the existence of a common intention to murder.
48. In Ramaswami Ayyangar v. State of Tamil Nadu [AIR 1976 SC 2027] this Court
declared that Section 34 is to be read along with preceding Section 33 which makes it clear
that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts
committed by different confederates in the criminal action may be different but all must in
one way or the other participate and engage in the criminal enterprise. Even a person not
doing any particular act but only standing guard to prevent any prospective aid to the
victims may be guilty of common intention. However, it is essential that in case of an offence
involving physical violence it is essential for the application of Section 34 that such accused
must be physically present at the actual commission of crime for the purposes of facilitating
accomplishment of “criminal act” as mentioned in that section. In Ramaswami’s case
203

(supra) it was contended that A-2 could not be held vicariously liable with the aid of Section
34 for the act of other accused on the grounds: firstly, he did not physically participate in the
fatal beating administered by co-accused to the deceased and thus the “criminal act” of
murder was not done by all the accused within the contemplation of Section 34; and
secondly, the prosecution had not shown that the act of A-2 in beating P.W. was committed
in furtherance of the common intention of all the three pursuant to a pre-arranged plan.
Repelling such an argument this Court held that such a contention was fallacious which
could not be accepted. The presence of those who in one way or the other facilitate the
execution of the common design itself tantamounts to actual participation in the “criminal
act”. The essence of Section 34 is simultaneously consensus of the minds of persons
participating in the criminal action to bring about a particular result. Conviction of A-2 under
Section 302/34 of the Code in that case was upheld.
49. In Rambilas Singh v. State of Bihar [AIR 1989 SC 1593] this Court held:
It is true that in order to convict persons vicariously under S.34 or S.149 IPC, it is not
necessary to prove that each and everyone of them had indulged in over acts. Even so,
there must be material to show that the overt act or acts of one or more of the accused
was or were done in furtherance of the common intention of all the accused or in
prosecution of the common object of the members of the unlawful assembly.(Emphasis
supplied)
50. Again a three Judge Bench of this Court in State of U.P. v. Iftikhar Khan [1973 (1)
SCC 512] after relying upon the host of judgments of Privy Council and this Court, held that
for attracting Section 34 it is not necessary that any overt act must be done by a particular
accused. The section will be attracted if it is established that the criminal act has been done
by one of the accused persons in furtherance of the common intention. If this is shown, the
liability for the crime may be imposed on any one of the person in the same manner as if the
act was done by him alone. In that case on proof of the facts that all the four accused
persons were residents of the same village and accused Nos.1 and 3 were brothers who
were bitterly inimical to the deceased and accused Nos.2 and 4 were their close friends,
accused Nos.3 and 4 had accompanied the other two accused who were armed with pistols;
all the four came together in a body and ran away in a body after the crime coupled with no
explanation being given for their presence at the scene, the Court held that the
circumstances led to the necessary inference of a prior concert and pre-arrangement which
proved that the “criminal act” was done by all the accused persons in furtherance of their
common intention.
 204

51. In Krishnan v. State of Kerala [JT 1996 (7) SC 612] this Court even assuming that one
of the appellants had not caused the injury to the deceased, upheld his conviction under
Section 302/34 of the Penal Code holding:
15. Question is whether it is obligatory on the part of the prosecution to establish
commission of overt act to press into service Section 34 of the Penal Code. It is no doubt
true that court likes to know about overt act to decide whether the concerned person
had shared the common intention in question. Question is whether overt act has always
to be established? I am of the view that establishment of a 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 common intention of
all”. What has to be, therefore, established by the prosecution is that all the concerned
persons had shared the common intention. Court’s mind regarding the sharing of
common intention gets satisfied when overt act is established qua each of the accused.
But then, there may be a case where the proved facts would themselves speak of
sharing of common intention: res ipsa loquitur.
52. In Surender Chauhan v. State of M.P. [(2000) 4 SCC 110] this Court held that 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 the 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. Referring to its earlier
judgment this Court held:
11. Under Section 34 a person must be physically present at the actual commission of
the crime for the purpose of facilitating or promoting the offence, the commission of
which is the aim of the joint criminal venture. Such presence of those who in one way or
the other facilitate the execution of the common design is itself tantamount to actual
participation in the criminal act. The essence of Section 34 is simultaneous consensus of
the minds of persons participating in the criminal action to bring about a particular
result. Such consensus can be developed at the spot and thereby intended by all of
them (Ramaswami Ayyangar v. State of T.N., 1976 (3) SCC 779). The existence of a
common intention can be inferred from the attending circumstances of the case and the
conduct of the parties. No direct evidence of common intention is necessary. For the
purpose of common intention even the participation in the commission of the offence
need not be proved in all cases. The common intention can develop even during the
course of an occurrence (Rajesh Govind Jagesha v. State of Maharashtra, 1999 (8) SCC
428). 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
205

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.
53. For appreciating the ambit and scope of Section 34, the preceding Sections 32 and
33 have always to be kept in mind. Under Section 32 acts include illegal omissions. Section
33 defines the “act” to mean as well a series of acts as a single act and the word “omission”
denotes as well a series of omissions as a single omission. The distinction between a
“common intention” and a “similar intention” which is real and substantial is also not to be
lost sight of. The common intention implies a pre-arranged plan but in a given case it may
develop at the spur of the moment in the course of the commission of the offence. Such
common intention which developed at the spur of the moment is different from the similar
intention actuated by a number of persons at the same time. The distinction between
“common intention” and “similar intention” may be fine but is nonetheless a real one and if
overlooked may lead to miscarriage of justice.
54. After referring to Mahboob Shah’s case (supra) this Court in Mohan Singh v. State
of Punjab [AIR 1963 174] observed, it is now well settled that the common intention
required by Section 34 is different from the same intention or similar intention. The persons
having similar intention which is not the result of pre-concerted plan cannot be held guilty
for the “criminal act” with the aid of Section 34. Similarly the distinction of the words used in
Section 10 of the Indian Evidence Act “in reference to their common intention” and the
words used in Section 34 “in furtherance of the common intention” is significant. Whereas
Section 10 of the Indian Evidence Act deals with the actions done by conspirators in
reference to the common object, Section 34 of the Code deals with persons having common
intention to do a criminal act.
56. However, in this case on facts, the prosecution has not succeeded in proving that A3
Pavitri Devi shared the common intention with the other two accused persons, one of whom
was her husband and the other her brother. It has come in evidence that when the
witnesses reached on the spot, they found the said accused standing on the road whereas
the other accused were busy committing the crime inside the house. The exaggerated
version of PW3 regarding the participation of Pavitri Devi by allegedly catching hold of his
mother’s hair cannot be accepted as P.Ws 1 and 2 have not supported the aforesaid version.
The High Court was, therefore, justified in holding that Pavitri Devi, A3 did not share the
common intention with the other accused persons. By her mere presence near the place of
 206

occurrence at or about the time of crime in the absence of other evidence, direct or
circumstantial, cannot hold her guilty with the aid of Section 34. But in case the prosecution
had succeeded in proving on facts of her sharing of common intention with A1 and A2, she
could not be acquitted of the charge framed against her only on the ground that she had
actually not done any overt act. The appeal of the State filed against Pavitri Devi has no
merit and has thus rightly been dismissed by Brother Thomas, J.

*****
207

Mizaji v. State of U.P.

1959 Supp (1) SCR 940 : AIR 1959 SC 572

J.L. KAPUR, J. - These are two appeals which arise out of the same judgment and order of
the High Court at Allahabad and involve a common question of law. Appellants Tej Singh and
Mizaji are father and son, Subedar is a nephew of Tej Singh, Machal is Tej Singh’s cousin and
Maiku was a servant of Tej Singh. They were all convicted under Section 302 read with
Section 149 of the Indian Penal Code and except Mizaji who was sentenced to death, they
were all sentenced to imprisonment for life. They were also convicted of the offence of
rioting and because Tej Singh and Mizaji were armed with a spear and a pistol respectively,
they were convicted under Section 148 of the Indian Penal Code and sentenced to three
years’ rigorous imprisonment and the rest who were armed with lathis were convicted
under Section 147 of the Indian Penal Code and sentenced to two years’ rigorous
imprisonment. All the sentences were to run concurrently but Mizaji’s term of imprisonment
was to come to an end after “he is hanged”. Against this order of conviction the appellants
took an appeal to the High Court and both their convictions and sentences were confirmed.
2. The offence for which the appellants were convicted was committed on July 27, 1957,
at about sunrise and the facts leading to the occurrence were that Field No. 1096 known as
Sukhna field was recorded in the revenue papers in the name of Banwari who was recorded
as in possession as tenant-in-chief. Sometime in 1949 he mortgaged this plot of land to one
Lakhan Singh. In 1952 this field was shown as being under the cultivation of Rameshwar, the
deceased and four other persons, Ram Sarup who was the uncle of Rameshwar, Jailal his
brother, Sita Ram and Saddon. The record does not show as to the title under which these
persons were holding possession. The mortgage was redeemed sometime in 1953. The
defence plea was that in the years 1954, 1955, 1956 possession was shown as that of
Banwari. But if there were any such entries, they were corrected in 1956 and possession was
shown in the revenue papers as that of Rameshwar, and four others above-named. These
entries showing cultivating possession of the deceased and four others were continued in
1957. On April 18, 1957, Banwari sold Field No. 1096 to Tej Singh appellant who made an
application for mutation in his favour but this was opposed by the deceased and four other
persons whose names were shown as being in possession. In the early hours of July 27, 1957
the five appellants came armed as above stated. Mizaji’s pistol is stated to have been in the
fold (phent) of his dhoti. A plough and plank known as patela and bullocks were also
brought. The disputed field had three portions, in one sugarcane crop was growing, in the
other Jowar had been sown and the rest had not been cultivated. Maiku started ploughing
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the Jowar field and overturned the Jowar sown therein while Tej Singh with his spear kept
watch. Bateshwar PW 7 seeing what was happening gave information of this to Ramsarup
who accompanied by Rameshwar, Jailal and Israel came to the Sukhna field but unarmed.
Ram Sarup inquired of Tej Singh as to why he was damaging his field and Tej Singh replied
that he had purchased the field and therefore would do “what he was doing” which led to
an altercation. Thereupon, the four persons cutting the sugarcane crop i.e. Mizaji, Subedar,
Machal and Maiku came to the place where Tej Singh was and upon the instigation of Tej
Singh, Mizaji took out the pistol and fired which hit Rameshwar, who fell down and died half
an hour later. The accused, after Rameshwar fell down, fled from the place. Ram Sarup, Jailal
and Israel then went to the police station Nawabgunj and Ram Sarup there made the first
information report at about 7-30 a.m., in which all the five accused were named. When the
police searched for the accused they could not be found and proceedings were taken under
Section 87 and 88 of the Code of Criminal Procedure, but before any process was issued
Subedar, Tej Singh and Machal and Maiku appeared in court on August 3, 1957 and Mizaji on
August 14, 1957, and they were taken into custody.
3. The prosecution relied upon the evidence of the eyewitnesses and also of Bateshwar
who carried the information to the party of complainant as to the coming of Tej Singh and
others. The defence of the accused was a total denial of having participated in the
occurrence and as a matter of fact suggested that Rameshwar was killed in a dacoity which
took place at the house of Ram Sarup. The learned Sessions Judge accepted the story of the
prosecution and found Ram Sarup to be in possession of the field; he also found that the
appellants formed an unlawful assembly “the common object of which was to take forcible
possession of the field and to meet every eventuality even to the extent of causing death if
they are interfered with in their taking possession of the field” and it was in prosecution of
the common object of that assembly that Mizaji had fired the pistol and therefore all were
guilty of the offence of rioting and of the offence under Section 302 read with Section 149,
Indian Penal Code. The High Court on appeal held that the appellants were members of an
unlawful assembly and had gone to the Sukhna field with the object of taking forcible
possession and
There is also no doubt that the accused had gone there fully prepared to meet any
eventuality even to commit murder if it was necessary for the accomplishment of their
common object of obtaining possession over the field. There is also no doubt that
considering the various weapons with which the accused had gone armed they must
have known that there was likelihood of a murder being committed in prosecution of
their common object.
209

The High Court also found that all the appellants had gone together to take forcible
possession and were armed with different weapons and taking their relationship into
consideration it was unlikely that they did not know that Mizaji was armed with a pistol and
even if the common object of the assembly was not to commit the murder of Rameshwar or
any other member of the party of the complainants “there can be no doubt that the accused
fully knew, considering the nature of weapons with which they were armed, namely, pistol
and lathis, that murder was likely to be committed in their attempt to take forcible
possession over the disputed land”. The High Court further found that the accused had gone
prepared if necessary to commit the murder in prosecution of their common object of taking
forcible possession. They accepted the testimony of Matadin and Hansram who stated that
all the accused had asked Ram Sarup and his companions to go away, otherwise they would
finish all of them and when they resisted accused Mizaji fired the pistol at them and thus in
view of the nature of the weapons with which they had gone to the disputed piece of land,
“they knew that murder was likely to be committed in prosecution of their object”. Another
finding given by the High Court was that the appellants wanted to forcibly dispossess the
complainants and with that object in view they went to the disputed field to take forcible
possession and that the complainant’s party on coming to know of it went to the field and
resisted. Mizaji fired the pistol and thus caused the death of Rameshwar. The High Court
also held:
We are also of the opinion that the act of the accused was premeditated and well-
designed and that the accused considering the circumstances of the case and the
weapons with which they were armed, knew that murder was likely to be committed in
accomplishment of their common object.
For the appellants it was contended that the High Court was not justified in drawing the
inference that other members of the party of the appellants had knowledge of the existence
of the pistol. There is no doubt that on the evidence the father Tej Singh must have known
that the son, Mizaji, had a pistol. And in the circumstances of this case the High Court cannot
be said to have erroneously inferred as to the knowledge of the rest as to the possession of
pistol by Mizaji.
4. The question for decision is as to what was the common object of the unlawful
assembly and whether the offence of murder was committed in prosecution of the common
object or was such an offence as the members of the unlawful assembly knew was likely to
be committed in prosecution of the common object. It was argued on behalf of the
appellants that the common object was to take forcible possession and that murder was
committed neither in prosecution of the common object of the unlawful assembly nor was it
 210

such as the members of that assembly knew to be likely to be committed. That the common
object of the unlawful assembly was to take forcible possession of the Sukhana field cannot
be doubted. Can it be said in the circumstances of this case that in prosecution of the
common object the members of the unlawful assembly were prepared to go to the extent of
committing murder or they knew that it was likely to be committed? One of the members of
the assembly Tej Singh was armed with a spear. His son Mizaji was armed with a pistol and
others were carrying lathis. The extent to which the members of the unlawful assembly
were prepared to go is indicated by the weapons carried by the appellants and by their
conduct, their collecting where Tej Singh was and also the language they used at the time
towards the complainant’s party. The High Court has found that the appellants “had gone
prepared to commit murder if necessary in the prosecution of their common object of taking
forcible possession of the land”, which it based on the testimony of Matadin and Hansraj
who deposed that when the complainant’s party arrived and objected to what the
appellants were doing they (the appellants) “collected at once” and asked Ram Sarup and his
companions to go away otherwise they would finish all of them and when the latter refused
to go away, the pistol was fired. That finding would indicate the extent to which the
appellants were prepared to go in the prosecution of their common object which was to
take forcible possession of the Sukhana field. The High Court also found that in any event
the case fell under the second part of Section 149, Indian Penal Code in view of the weapons
with which the members of the unlawful assembly were armed and their conduct which
showed the extent to which they were prepared to go to accomplish their common object.
5. Counsel for the appellants relied on Queen v. Sabid Ali [(1873) 20 WR 5 Cr] and
argued that Section 149 was inapplicable. There the learned Judges constituting the full
bench gave differing opinions as to the interpretation to be put on Section 149, Indian Penal
Code. That was a case where the members of an unlawful assembly went to take forcible
possession of a piece of land. The view of the majority of the Judges was that, finding
unexpected opposition by one member of the party of the complainants and also finding
that they were being overpowered by him, one of the members of the unlawful assembly
whose exact time of joining the unlawful assembly was not proved fired a gun killing one of
the occupants of the land who were resisting forcible dispossession. It was also held that the
act had not been done with a view to accomplish the common object of driving the
complainants, out of the land, but it was in consequence of an unexpected counter-attack.
Ainslie, J., was of the opinion that the common object of the assembly was not only to
forcibly eject the occupants but to do so with show of force and that common object was
compounded both of the use of the means and attainment of the end and that it extended
to the committing of murder. Phear, J., said that the offence committed must be
211

immediately connected with that common object by virtue of the nature of the object. The
members of the unlawful assembly must be prepared and intend to accomplish that object
at all costs. The test was, did they intend to attain the common object by means of murder if
necessary? If events were of sudden origin, as the majority of the learned Judges held them
to be in that case, then the responsibility was entirely personal. In regard to the second part
he was of the opinion that for its application it was necessary that members of the assembly
must have been aware that it was likely that one of the members of the assembly would do
an act which was likely to cause death. Couch, C.J., was of the opinion that firing was not in
prosecution of the common object of the assembly and that there was not much difference
between the first and the second part of Section 149. He said:
At first there does not seem to be much difference between the two parts of the section
and I think the cases which would be within the first, offences committed in prosecution
of the common object, would be, generally, if not always, within the second, namely,
offences which the parties knew to be likely to be committed in the prosecution of the
common object. But I think there may be cases which would come within the second
part and not within the first.
Jackson, J., held in the circumstances of that case that assembly did not intend to
commit nor knew it likely that murder would be committed. Pontifex, J., interpreted the
section to mean that the offence committed must directly flow from the common object or
it must so probably flow from the prosecution of the common object that each member
might antecedently expect it to happen. In the second part “know” meant to know that
some members of the assembly had previous knowledge that murder was likely to be
committed.
6. This section has been the subject-matter of interpretation in the various High Courts
of India, but every case has to be decided on its own facts. The first part of the section
means that the offence committed in prosecution of the common object must be one which
is committed with a view to accomplish the common object. It is not necessary that there
should be a pre-concert in the sense of a meeting of the members of the unlawful assembly
as to the common object; it is enough if it is adopted by all the members and is shared by all
of them. In order that the case may fall under the first part the offence committed must be
connected immediately with the common object of the unlawful assembly of which the
accused were members. Even if the offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under Section 149 if it can be held that the
offence was such as the members knew was likely to be committed. The expression ‘know’
does not mean a mere possibility, such as might or might not happen. For instance, it is a
 212

matter of common knowledge that when in a village a body of heavily armed men set out to
take a woman by force, someone is likely to be killed and all the members of the unlawful
assembly must be aware of that likelihood and would be guilty under the second part of
Section 149. Similarly, if a body of persons go armed to take forcible possession of the land,
it would be equally right to say that they have the knowledge that murder is likely to
committed if the circumstances as to the weapons carried and other conduct of the
members of the unlawful assembly clearly point to such knowledge on the part of them all.
There is a great deal to be said for the opinion of Couch, C.J., in Sabid Ali case that when an
offence is committed in prosecution of the common object, it would generally be an offence
which the members of the unlawful assembly knew was likely to be committed in
prosecution of the common object. That, however, does not make the converse proposition
true; there may be cases which would come within the second part, but not within the first.
The distinction between the two parts of Section 149, Indian Penal Code cannot be ignored
or obliterated. In every case it would be an issue to be determined whether the offence
committed falls within the first part of Section 149 as explained above or it was an offence
such as the members of the assembly knew to be likely to be committed in prosecution of
the common object and falls within the second part.
7. Counsel for the appellants also relied on Chikkarange Gowde v. State of Mysore [AIR
1956 SC 731]. In that case there were special circumstances which were sufficient to dispose
of it. The charge was a composite one mixing up common intention and common object
under Sections 34 and 149, Indian Penal Code and this Court took the view that it really was
one under Section 149 Indian Penal Code. The charge did not specify that three of the
members had a separate common intention of killing the deceased, different from that of
the other members of the unlawful assembly. The High Court held that the common object
was merely to chastise the deceased, and it did not hold that the members of the unlawful
assembly knew that the deceased was likely to be killed in prosecution of that common
object. The person who was alleged to have caused the fatal injury was acquitted. This Court
held that on the findings of the High Court there was no liability under Section 34 and
further the charge did not give proper notice, nor a reasonable opportunity, to those
accused to meet that charge. On these findings it was held that conviction under Section 302
read with Section 149 was not justified in law, nor a conviction under Section 34.
8. It was next argued that the appellants went to take possession in the absence of the
complainants who were in possession and therefore the common object was not to take
forcible possession but to quietly take possession of land which the appellants, believed was
theirs by right. In the first place there were proceedings in the Revenue Department going
213

on about the land and the complainants were opposing the claim of the appellants and then
when people go armed with lethal weapons to take possession of land which is in possession
of others, they must have the knowledge that there would be opposition and the extent to
which they were prepared to go to accomplish their common object would depend on their
conduct as a whole.
9. The finding of the High Court as we have pointed out was that the appellants had
gone with the common object of getting forcible possession of the land. They divided
themselves into three parties, Maiku appellant was in the field where jowar was sown and
he was ploughing it, Mizaji, Subedar and Machal were in the sugar field and cutting the crop.
Tej Singh was keeping watch. When the party of the complainants on being told of what the
appellants were doing came, they protested to Tej Singh. Thereupon, all the members of Tej
Singh’s party gathered at the place where Tej Singh was and asked the complainants “to go
away otherwise they would be finished”, but they refused to go. Thereupon Tej Singh asked
Mizaji to fire at them and Mizaji fired the pistol which he was carrying in the fold of his dhoti
as a result of which Rameshwar was injured, fell down and died 1/2 hour later. It was argued
on behalf of the appellants that in these circumstances it cannot be said that the offence
was committed in prosecution of the common object of the assembly which was clear from
the fact that the party had divided itself into three parts and only Mizaji used his pistol and
the other appellants did not use any weapon and just went away.
10. Both the Courts below have found that the pistol was fired by Mizaji and thus he was
responsible for causing the death of Rameshwar which would be murder and also there is no
doubt that Tej Singh would be guilty of abetment of that offence. But the question is
whether Section 149 is applicable in this case and would cover the case of all the appellants?
This has to be concluded from the weapons carried and the conduct of the appellants. Two
of them were armed one with a spear and the other with a pistol. The rest were armed with
lathis. The evidence is that when the complainants’ party objected to what the appellants
did, they all collected together and used threats towards the complainants’ party telling
them to go away otherwise they would be finished and this evidence was accepted by the
High Court. From this conduct it appears that members of the unlawful assembly were
prepared to take forcible possession at any cost and the murder must be held to be
immediately connected with the common object and therefore the case falls under Section
149, Indian Penal Code and they are all guilty of murder. This evidence of Hansram and
Matadin which relates to a point of time immediately before the firing of the pistol shows
that the members of the assembly at least knew that the offence of murder was likely to be
committed to accomplish the common object of forcible possession.
 214

11. It was then contended that Mizaji did not want to fire the pistol and was hesitating
to do so till he was asked by his father to fire and therefore penalty of death should not have
been imposed on him. Mizaji carried the pistol from his house and was a member of the
party which wanted to take forcible possession of the land which was in possession of the
other party and about which proceedings were going on before the Revenue Officer. He fully
shared the common object of the unlawful assembly and must be taken to have carried the
pistol in order to use it in the prosecution of the common object of the assembly and he did
use it. Merely because a son uses a pistol and causes the death of another at the instance of
his father is no mitigating circumstance which the courts would take into consideration.
12. In our opinion the courts below have rightly imposed the sentence of death on
Mizaji. Other appellants being equally guilty under Section 149, Indian Penal Code, have
been rightly sentenced to imprisonment for life.
13. The appeals must therefore be dismissed.
215

Maina Singh v. State of Rajasthan

(1976) 2 SCC 827: AIR 1976 SC 1084

P.N. SHINGHAL, J. - This appeal of Maina Singh arises out of the judgment of the Rajasthan
High Court dated April 21, 1971 upholding the trial Court’s judgment convicting him of an
offence under Section 302 read with Section 34 I.P.C. for causing the death of Amar Singh
and of an offence under Section 326 I.P.C. for causing grievous injuries to Amar Singh’s son
Ajeet Singh (PW 2), and sentencing him to imprisonment for life for the offence of murder
and to rigorous imprisonment for three years and a fine of Rs 100 for the other offence.
2. The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh,
Jeet Singh and Puran Singh used to live in ‘chak’ No. 77 GB, in Ganganagar district of
Rajasthan while Narain Singh used to live in another ‘chak’. It was alleged that the relations
between Amar Singh and Maina Singh were strained, as Maina Singh suspected that Amar
Singh was giving information about his smuggling activities. Amar Singh was having some
construction work done in his house and had engaged Isar Ram (PW 3) as a mason. On June
29, 1967, at about sunset, the deceased Amar Singh, his son Ajeet Singh (PW 2) and Isar Ram
(PW 3) went to the ‘diggi’ in ‘murabba’ 35 for bath. Ajeet Singh took his bath, and was
changing his clothes and Isar Ram was nearby. Amar Singh was cleaning his ‘lota’ after
attending the call of nature. It is alleged that at that time Maina Singh and his three sons
Hardeep Singli, Jeel Singh and Puran Singh came to the ‘diggi’ along with Narain Singh.
Maina “Singh was armed with a 12 bore gun, Puran Singh with a ‘takua’ and the other three
with ‘gandasis’. Maina Singh fired at Amar Singh, but could not hit him. The gunshots
however hit Ajeet Singh (PW 2) on his legs and he jumped into a dry watercourse which was
nearby to take cover. Maina Singh fired again, but without success. Amar Singh ran towards
the sugarcane field crying for help but was chased by the accused. Ajeet Singh thereupon
ran towards ‘chak’ No. 78 GB and ultimately went and lodged a report at police station
Anoopgarh at 10 p.m. after covering a distance of about six miles. The five accused however
followed Amar Singh. Maina Singh fired his gun at Amar Singh and he fell down. The other
accused went near him and gave ‘gandasi’ blows, and Maina Singh gave a blow or two with.
the butt end of his gun which broke and the broken pieces fell down. Amar Singh succumbed
to his injuries on the spot, and the accused ran away.
3. On the report of Ajeet Singh about the incident which took place by the time he left
for the police station, the police registered a case for an offence under Section 307 read with
Section 149 I.P.C. and started investigation. The body of Amar Singh was sent for post-
mortem examination. The report Ex. P-9 of Dr Shanker Lal (PW 5) is on the record. The
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injuries of Ajeet Singh (PW 2) were also examined by Dr Shanker Lal and his report in that
connection is Ex. P-10. It was found that there were several gunshot injuries, incised wounds
and lacerated wounds on the body of the deceased, and there were as many as 12 gunshot
wounds on the person of Ajeet Singh (PW 2). All the five accused were found absconding
and could be taken into custody after proceedings were started against them under Sections
87 and 88 Cr. P.C. Maina Singh held a licence for gun Ex. 23 and led to its recovery during the
course of the investigation vide memorandum Ex. P-43. At that time, its butt was found to
be missing. Its broken pieces had however been recovered by the investigating officer
earlier, along with .the empty cartridges.
4. The prosecution examined Ajeet Singh (PW 2), Isar Ram (PW 3) and Smt. Jangir Kaur
(PW 7) the wife of the deceased as eyewitnesses of the incident. The accused denied the
allegation of the prosecution altogether, but Maina Singh admitted that the gun belonged to
him and he held a licence for it. The Sessions Judge disbelieved the evidence of Smt. Jangir
Kaur (PW 7) mainly for the reason that her name had not been mentioned in the first
information report. He took the view that the statements of Ajeet Singh (PW 2) and Isar Ram
(PW 3) were inconsistent regarding the part played by Hardeep Singh, Jeet Singh, Narain
Singh and Puran Singh accused, and although he held that one or more of the accused
persons, besides Maina Singh, might be responsible for causing injuries to the deceased,
along with Maina Singh, he held further that it could not be ascertained which one of the
accused was with him. He also took the view that “someone else might have been with him”
and he therefore gave the benefit of doubt to accused Hardeep Singh, Jeet Singh, Puran
Singh and Narain Singh and acquitted them. As the statements of Ajeet Singh (PW 2) and Isar
Ram (PW 3) were found to be consistent against appellant Maina Singh, and as there was
circumstantial evidence in the shape of the recovery of empty cartridges near the dead body
and gun (Ex. 23), as well as the medical evidence, and the fact that the accused had
absconded, the learned Sessions Judge convicted and sentenced him as aforesaid.
5. An appeal was preferred by the State against the acquittal of the remaining four
accused, and Maina Singh also filed an appeal against his conviction. The High Court
dismissed both the appeals and maintained the conviction and sentence of Maina Singh as
aforesaid.
6. Mr. Harbans Singh appearing on behalf of appellant Maina Singh has not been able to
challenge the evidence on which appellant Maina Singh has been convicted, but he has
raised the substantial argument that he could not have been convicted of the offence of
murder under Section 302 read with Section 34 I.P.C. when the four co-accused had been
acquitted and the Sessions Judge had found that it was not possible to record a conviction
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under Section 302 read with Section 149 I.P.C. or Section 148 I.P.C. It has been argued that
when the other four accused were given the benefit of doubt and were acquitted, it could
not be held, in law, that they formed an unlawful assembly or that any offence was
committed by appellant Maina Singh in prosecution of the common object of that assembly.
It has been argued further that, a fortiori, it was not permissible for the court of sessions or
the High Court to take the view that a criminal act was done by appellant Maina Singh in
furtherance of the common intention of the “other accused” when those accused had been
named to be no other than Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh who
had all been acquitted. It has therefore been argued that all that was permissible for the
High Court was to convict appellant Maina Singh of any offence which he might have
committed in his individual capacity, without reference to the participation of any other
person in. the crime. On the other hand, it has been argued by Mr. S. M. Jain that as the
learned Sessions Judge had acquitted the remaining four accused by giving them the benefit
of doubt, and had recorded the finding that one or more of the accused persons or some
other person might have participated in the crime along with Maina Singh, the High Court
was quite justified in upholding the conviction of the appellant Maina Singh of an offence
under Section 302/34 I.P.C.
7. The relevant portion of the judgment of the trial Court, which bears on the
controversy and has been extracted with approval in the impugned judgment of the High
Court, is as follows:
The injuries found on the person of the deceased Amar Singh were with firearm, blunt
as well as sharp weapon. The firearm injuries and the blunt weapon injuries have been
assigned to Maina Singh and so there must have been other person also along with
Maina Singh in causing injuries to the deceased. It can be so inferred from the
statements of Isar Ram and Ajeet Singh also. These facts could no doubt create a strong
suspicion that one or more of the accused persons might be responsible along with
Maina Singh in causing injuries to the deceased. In view of the statement of Isar Ram
and Ajeet Singh it cannot however be ascertained which one of the accused was with
Maina Singh and it was also possible that someone else might have been with him. In
such a case the prosecution version against these four accused persons arc not proved
beyond doubt. They arc therefore not guilty of the offence with which they have been
charged.
It would thus appear that the view which has found favour with the High Court is that as
there were injuries with firearm and with blunt and sharp-edged weapons, and as the
firearm and the blunt weapon injuries had been ascribed to Maina Singh, there must have
been one other person with him in causing the injuries to the deceased. At the same time, it
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has been held further that these facts could only create a strong suspicion “that one or more
of the accused persons might be responsible along with Maina Singh in causing the injuries
to the deceased”, but it could not be ascertained which one of the accused was with him
and that it was also possible that “someone else might have been with him”. The finding
therefore is that the other person might have been one of the other accused or someone
else, and not that the other associate in the crime was a person other than the accused.
Thus the finding is not categorical and does not exclude the possibility of infliction of the
injuries in furtherance of the common intention of one of the acquitted accused and the
appellant.
8. Another significant fact which bears on the argument of Mr. Harbans Singh is that
while in the original charge-sheet the Sessions Judge specifically named appellant Maina
Singh and the other accused Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh as
forming an unlawful assembly and for causing the death of Amar Singh in furtherance of the
common object of that assembly, he altered that charge but retained, at the same time, the
charge that Maina Singh formed an unlawful assembly along with the “other accused” with
the common object of murdering Amar Singh and intentionally caused injuries to him along
with “the other accused” in prosecution of that common object. In this case therefore Maina
Singh and the other four accused were alleged, all along, to have participated in the crime
and were named in the chargesheet as the perpetrators of the crime without there being an
allegation that some other person (besides the accused) took part in it in any manner
whatsoever. It was in fact the case from the very beginning, including the first information
report, that the offence was committed by all the five named accused, and even the
evidence of the prosecution was confined to them all through and to no other person. The
question is whether the High Court was right in upholding the conviction of the appellant
with reference to Section 34 I.P.C. in these circumstances?
9. Such a question came up for consideration in this Court on earlier occasions, and we
shall refer to some of those decisions in order to appreciate the argument of Mr. Jain that
the decision in Dharam Pal v. State of U. P. [(1975) 2 SCC 596] expresses the latest view of
this Court and would justify the appellant’s conviction by invoking Section 34 I.P.C.
10. We may start by making a reference to King v. PIummer [(1902) 2 KB 339] which, as
we shall show has been cited with approval by this Court in some of its decisions. That was a
case where there was a trial of an indictment charging three persons jointly with conspiring
together. One of them pleaded guilty, and a judgment was passed against him and the other
two were acquitted. It was alleged that the judgment passed against the one who pleaded
guilty was bad and could not stand. Lord Justice Wright held that there was much authority
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to the effect that if there was acquittal of the only alleged co-conspirators, no judgment
could have been passed on the appellant, if he had not pleaded guilty, because the verdict
must have been regarded as repugnant in finding that there was a criminal agreement
between the appellant and the others and none between them and him. In taking that view
he made a reference to Harrison v. Errington [(1627) Popham, 202] whereupon an
indictment of three for riot two were found not guilty and one guilty, and upon error
brought it was held a “void verdict”. Bruce, J. who was the other judge in the case made a
reference to the following statement in Chitty’s Criminal Law while agreeing with the view
taken by Wright, J.:
And it is holden that if all the defendants mentioned in the indictment, except one, are
acquitted, and it is not stated as a conspiracy with certain persons unknown, the
conviction of the single defendant will be invalid, and no judgment can be passed upon
him.
11. This Court approved Plummer’s case in its decision in Topandas v. State of Bombay
[AIR 1956 SC 33]. That was a case where four named individuals were charged with having
committed an offence under Section 120-B I.P.C. and three out of those four were acquitted.
This Court held that the remaining accused could not be convicted of the offence as his
alleged co-participators had been acquitted, for that would be clearly illegal.
12. A similar point came up for consideration in Mohan Singh v. State of Punjab [AIR
1963 SC 174]. There two of the five persons who were tried together were acquitted while
two were convicted under Section 302 read with Section 149 and Section 147 I.P.C. In the
charge those five accused persons and none others were mentioned as forming the unlawful
assembly and the evidence led in the case was confined to them. The proved facts showed
that the two appellants and the other convicted person, who inflicted the fatal blow, were
actuated by common intention of fatally assaulting the deceased. While examining the
question of their liability, it was observed as follows:
Cases may also arise where in the charge the prosecution names five or more persons
and alleges that they constituted an unlawful assembly. In such cases, if both the
charge and the evidence are confined to the persons named in the charge and out of
the persons so named two or more are acquitted leaving before the court less than
five persons to be tried, then Section 149 cannot be invoked. Even in such cases, it is
possible that though the charge names five or more persons as composing an
unlawful assembly, evidence may nevertheless show that the unlawful assembly
consisted of some other persons as well who were not identified and so not named. In
such cases, either the trial Court or even the High Court in appeal may be able to
come to the conclusion that the acquittal of some of the persons named in the charge
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and tried will not necessarily displace the charge under Section 149 because along
with the two or three persons convicted were others who composed the unlawful
assembly but who have not been identified and so have not been named. In such
cases, the acquittal of one or more persons named in the charge does not affect the
validity of the charge under Section 149 because on the evidence the court of facts is
liable to reach the conclusion that the persons composing the unlawful assembly
nevertheless were five or more than five.
13. The other case to which we may make a reference is Krishna Govind Patil v. State of
Maharashtra [AIR 1963 SC 1413]. It noticed and upheld the earlier decision in Mohan
Singh’s case and after referring to the portion which we have extracted, it was held as
follows:

It may be that the charge discloses only named persons; it may also be that the
prosecution witnesses named only the said accused; but there may be other evidence,
such as that given by the court witnesses, defence witnesses or circumstantial pieces of
evidence, which may disclose the existence of named or unnamed persons, other than
those charged or deposed to by the prosecution witnesses, and the court, on the basis
of the said evidence, may come to the conclusion that others, named or unnamed,
acted conjointly along with one of the accused charged. But such a conclusion is really
based on evidence.
14. It would thus appear that even if, in a given case, the charge discloses only the
named persons as co-accused and the prosecution witnesses confine their testimony to
them, even then it would be permissible to come to the conclusion that others named or
unnamed, besides those mentioned in the charge or the evidence of the prosecution
witnesses, acted conjointly with one of the charged accused if there was other evidence to
lead to that conclusion, but not otherwise.
15. The decision in Krishna Govind Patil’s case was followed by the decision in Ram Bilas
Singh v. State of Bihar [(1964) 1 SCR 775]. After noticing and approving the view taken in
Plummer’s case and the decisions in Mohan Singh’s case and Krishna Govind Patil’s case
this Court stated the law once again as follows:

The decisions of this Court quoted above thus make it clear that where the prosecution
case as set out in the charge and as supported by the evidence is to the effect that the
alleged unlawful assembly consists of five or more named persons and no others, and
there is no question of any participation by other persons not identified or identifiable it
is not open to the court to hold that there was an unlawful assembly unless it comes to
the definite conclusion that five or more of the named persons were members thereof.
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Where, however, the case of the prosecution and the evidence adduced indicates that a
number in excess of five persons participated in the incident and some of them could,
not be identified, it would be open to the court to convict less than five of the offence of
being members of the unlawful assembly or convict them of the offence committed by
the unlawful assembly with the aid of Section 149 I. P. C. provided it comes to the
conclusion that five or more persons participated in the incident.
16. The other decision to which our attention has been invited is Yashwant v. State of
Maharashtra [(1972) 3 SCC 639]. The decision in Krishna Govind Patil was cited there on
behalf of the appellant and, while referring to the view expressed there, it was observed
that in the case before the court there was evidence that the man who used the axe on
Sukal was a man who looked like appellant Brahmanand Tiwari, and could be that accused
himself. But, as the Court was not satisfied that the identity of the person who used the axe
on Sukal was satisfactorily established, as that of Brahmanand Tiwari, it took the view that
the remaining accused could be convicted with the aid of Section 34 for the offences
committed by them. This Court did not therefore disagree with the view taken in Krishna
Govind Patil’s case, but purported to follow it in its decision and took the aforesaid view in
regard to the identity of Brahmanand Tiwari for the purpose of distinguishing it from the
case of Krishna Govind Patil where there was not a single observation in the judgment to
indicate that persons other than the named accused participated in the offence and there
was no evidence also in that regard.
17. The matter once again came up for consideration in Sukh Ram v. State of U. P.
[(1974) 3 SCC 656]. The Court referred to its earlier decisions including those in Mohan
Singh’s case and Krishna Govind Patil’s case and. while distinguishing them on facts, it
observed that as the prosecution did not put forward a case of the commission of crime by
one known person and one or two unknown persons as in Sukh Ram’s case, and there was
no evidence to the effect that the named accused had committed the crime with one or
more other persons, the acquittal of the other two accused raised no bar to the conviction
of the appellant under Section 302 read with Section 34 I.P.C. The decision in Sukh Ram’s
case cannot therefore be said to lay down a contrary view for it has upheld the view taken in
the earlier decisions of this Court.
18. That leaves the case of Dharam Pal v. State of U. P. for consideration. In that case
four accused were tried with fourteen others for rioting. The trial Court gave benefit of
doubt to eleven of them, and acquitted them. The remaining seven were convicted for the
offence under Section 302/149 1. P. C. and other offences. The High Court gave benefit of
doubt to four of them, and held that at least four of the accused participated in the crime
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because of their admission and the injuries. On appeal this Court found that the attacking
party could not conceivably have been of less than five because that was the number of the
other party, and it was in that connection that it held that there was no doubt about the
number of the participants being not less than five. It was also held that as eighteen accused
participated in the crime, and the Court gave the benefit of doubt to be on the side of safety,
as a matter of abundant caution, reducing the number to less than five, it may not be
difficult to reach the conclusion, having regard to undeniable facts, that the number of the
participants could not be less than five. That was therefore a case which was decided on its
own facts but even so, it was observed as follows:

It may be that a definite conclusion that the number of participants was at least five
may be very difficult to reach where the allegation of participation is confined to five
known persons and there is no doubt about the identity of even one.

It cannot therefore be said that the decision in Dharam Pal’s case is any different from the
earlier decisions of this Court, or that it goes to support the view which has been taken by
the High Court in the case before us. The view which has prevailed with this Court all along
will therefore apply to the case before us.
19. As has been stated, the charge in the present case related to the commission of the
offence of unlawful assembly by the appellant along with the other named four co-accused,
and with no other person. The trial in fact went on that basis throughout. There was also no
direct or circumstantial evidence to show that the offence was committed by the appellant
along with any other unnamed person. So when the other four co-accused have been given
the benefit of doubt and have been acquitted, it would not be permissible to take the view
that there must have been some other person along with the appellant Maina Singh in
causing the injuries to the deceased. It was as such not permissible to invoke Section 149 or
Section 34 I.P.C. Maina Singh would accordingly be responsible for the offence, if any, which
could be shown to have been committed by him without regard to the participation of
others.
20. The High Court has held that there could be no room for doubt that the firearm and
the blunt weapon injuries which were found on the person of Amar Singh were caused by
appellant Maina Singh and that finding has not been challenged before us by Mr. Harbans
Singh. Dr Shanker Lal (PW 5) who performed the post-mortem examination stated that while
all those injuries were collectively sufficient in the ordinary course of nature to cause death,
he could not say whether any of them was individually sufficient to cause death in the
ordinary course of nature. It is not therefore possible to hold that the death of Amar Singh
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was caused by the gunshot or the blunt weapon injuries which were inflicted by appellant
Maina Singh. Dr Shanker Lal has stated that the fracture of the frontal bone of the deceased
could have been caused by external injuries Nos. 8, 10 and 12, and that he could die of that
injury also but of those three injuries injury No. 12 was inflicted by a sharp-edged weapon
and could not possibly be imputed to the appellant. The evidence on record therefore does
not go to show that he was responsible for any such injury as could have resulted in Amar
Singh’s death. The evidence however proves that he inflicted gunshot injuries on the
deceased, and Dr Shanker Lal has stated that one of those injuries (injury No. 26) was
grievous. Maina Singh was therefore guilty of voluntarily causing grievous hurt to the
deceased by means of an instrument for shooting, and was guilty of an offence under
Section 326 I.P.C. In the circumstances of the case, we think it proper to sentence him to
rigorous imprisonment for 10 years for that offence. As has been stated, he has been held
guilty of a similar offence for the injuries inflicted on Ajeet Singh (PW 2) and his conviction
and sentence for that other offence under Section 326 I. P. C. has not been challenged
before us.
21. The appeal is therefore allowed to the extent that the conviction or Maina Singh
under Section 302/34 I.P.C. is altered to one under Section 326 I.P.C. and the sentence is
reduced to rigorous imprisonment for ten years thereunder. The conviction under Section
326, for causing injuries to Ajeet Singh, and the sentence of rigorous imprisonment for three
years and a fine of Rs 100 call for no interference and are confirmed. Both the sentences will
run concurrently.
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