REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.437 OF 2005

Nand Kishore … Appellant

Versus

State of Madhya Pradesh … Respondent

J U D G M E N T

Swatanter Kumar, J.

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1. The present appeal is directed against the judgment of  

the High Court of Judicature of Madhya Pradesh at Jabalpur  

dated  26th August,  2004  affirming  the  judgment  of  the  

Sessions Judge, Datia, Madhya Pradesh dated 30th December,  

1998 convicting all the three accused (appellants/petitioners  

herein) for an offence under Section 302 read with Section 34  

of the Indian Penal Code (IPC) awarding life sentence to each  

one of them with a fine of Rs.2,000/- each in default thereto to  

undergo rigorous imprisonment for three years.

2. We must notice that vide order dated 28th May, 2005, the  

Special  Leave  Petition  in  respect  of  Petitioner  Nos.2  and 3,  

namely, Mahesh Dhimar and Dinesh Dhimar had already been  

dismissed.  Thus, we have to consider the present appeal only  

in respect of Appellant No.1, namely, Nand Kishore.

3. The  learned  counsel  appearing  on  behalf  of  appellant  

No.1, while impugning the judgment under appeal contended  

that :

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A. the  prosecution  has  not  been  able  to  prove  its  case  

beyond  reasonable  doubt.   In  fact,  there  is  no  direct  

evidence to sustain the conviction of the accused.  It is  

further  argued that  on the contrary,  there  are  serious  

contradictions between the statements of the alleged eye-

witnesses as well as the medical evidence.  The accused,  

thus,  was  entitled  to  benefit  of  doubt  and consequent  

acquittal.

B. In any case, the appellant could not have been convicted  

at all for an offence under Section 302 read with Section  

34  IPC  as  he  had  no  common  intention  with  other  

accused. It is further submitted that he shared neither  

participated in the commission of the crime nor was he  

carrying any weapon.  On the cumulative reading of the  

evidence,  the  ingredients  of  Section  34  IPC  are  not  

satisfied  and,  therefore,  conviction  of  the  appellant  is  

vitiated in law.

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4. In  order  to  examine  the  merit  or  otherwise  of  these  

contentions, it would be useful for us to refer to the necessary  

facts giving rise to the present appeal.

The incident took place on 18th June, 1997 in the night at  

about  9-9.30  p.m.  at  Christian  Ka Pura,  Bangar  Ki  Haveli.  

Some young boys  of  the  vicinity  informed the complainant,  

Brij  Kishore Bidua,  who was later examined as PW1 that a  

quarrel has taken place between Mahavir, the deceased, and  

Mahesh Dhimar near  the  house of  Mahesh Dhimar.   Upon  

receiving  this  information,  Brij  Kishore,  along  with  Sunil  

Badhaulia, went running to the Christian Ka Pura where they  

saw  that  Mahesh  Dhimar  was  holding  both  the  arms  of  

Mahavir and Dinesh Dhimar was stabbing him with knife in  

the chest on the left side and Nand Kishore was also pelting  

stones  at  him.   After  receiving  these  injuries,  Mahavir  

collapsed  to  the  ground.   As  per  the  witnesses  even  after  

Mahavir  fell,  Nand Kishore  kept  pelting  stones  on him and  

then  they  ran  away  from the  site.   Brij  Kishore  and Sunil  

carried  Mahavir  to  the  hospital  on  their  scooter  where  the  

doctor examined him and declared him brought dead.  It is the

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case of the prosecution that Mahavir had some dues to recover  

from Mahesh Dhimar and to recover that money, Mahavir had  

gone to Mahesh Dhimar but the fight occurred and without  

any resistance from Mahavir, all the three accused killed him  

in the manner afore-referred.

At about 10 p.m. the same day Brij Kishore, the brother  

of the deceased Mahavir, lodged a report in the Police Station  

at  Kotwali  Datia  where  a  criminal  case  No.175/97  under  

Section 302 read with Section 34 IPC was registered.  This was  

investigated  by  the  Investigating  Officer  who,  during  

investigation, prepared or caused to be prepared post mortem  

report, site plan, recovered a knife on the disclosure of Dinesh,  

recovered  bricks,  took  sample  of  soil  soaked  in  blood  and  

clothes of the deceased.  These things were sent to the forensic  

science  laboratory  for  examination.   After  completing  the  

investigation,  challan  was  filed  against  all  the  accused  

persons.   They  were  tried  by  the  Court  of  competent  

jurisdiction.  The Sessions Judge, Datia, by a detailed and well  

reasoned  judgment  dated  30th December,  1998,  convicted  

accused Dinesh for an offence under Section 302 IPC while the

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other two accused, namely, Nand Kishore and Mahesh Dhimar  

were  convicted  for  an  offence  under  Section  302 read  with  

Section  34  IPC  and  sentenced  them  as  aforestated.   This  

judgment was unsuccessfully assailed by the accused before  

the  High  Court  which  dismissed  the  appeal  declining  to  

interfere either with the judgment of conviction or the order of  

sentence.

5. Dissatisfied from the concurrent judgments of the courts,  

the accused has filed the present appeal.   

6. The statements of PW1, Brij Kishore, Dr. P.K. Srivastava,  

PW5 and PW8, Narendra Singh, (Investigating Officer) have to  

be examined in some detail.

7. PW1 is the eye-witness to the occurrence and while fully  

supporting the case of the prosecution, he stated that Mahesh  

Dhimar’s  house  was  about  100  ft.  away  from the  place  of  

occurrence.   He  narrated  the  above  facts  and  stated  that  

Rajendra and Sunil had also reached the spot following him  

and  they  had  witnessed  the  occurrence.   They  took  the  

deceased to the hospital where he was declared brought dead.

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This  witness  did  not  refer  to  any  animosity  between  the  

deceased and the accused.   PW8 has referred to  the  entire  

investigation, various recovery memos as well as registration of  

the FIR (Exhibit P1).  Statement of PW1 is corroborated with  

the report of Exhibit P1.

8. Dr. P.K. Srivastava, PW5, stated that on 19th June, 1997  

at around 7.00 O’clock in the morning, he had examined the  

dead body of the deceased and there were incised wounds on  

his body on the left side of the chest, right thigh, in the heart  

in left lung and 11-12 other lacerated scratches and internal  

wounds etc.   According to him, injury  on the heart  caused  

death and the deceased had died round about 10-14 hours  

before the post mortem examination.   

9. There  are  two  main  discrepancies  which  have  been  

highlighted on behalf of the appellant to claim the benefit of  

doubt.  Firstly, that according to the doctor, there were nearly  

16  wounds  on  the  body  of  the  deceased,  while  the  eye-

witnesses have referred to just two blows by accused Dinesh  

Dhimar on the left side of the deceased; and secondly that the

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injuries  were  stated  to  have  only  been  caused  by  a  sharp  

weapon.   Brij  Kishore (PW1) had clearly stated that Dinesh  

had inflicted the injuries upon the body of the deceased with a  

knife.  According to Investigating officer (PW8) and Munna Lal  

(PW2), the said knife was recovered by Panchnama of recovery  

(Ex. P-6).  However, PW1 did not specifically state in the Court  

that  the  knife  was  recovered  by  going  to  the  house  of  the  

accused.  There is  some element of  difference between these  

statements  but  it  in  no  way  amounts  to  a  material  

contradiction or discrepancy which has caused any prejudice  

to the accused.  These so-called discrepancies can easily be  

explained and have  been dealt  with in the  judgment  under  

appeal appropriately.  In his examination in which PW1 has  

stated that after arrest of Dinesh, the police had questioned  

him  and  he  had  told  them  about  the  knife  which  was  

recovered.  However, he stated that he does not remember the  

exact place from where the recovery was made due to lapse of  

time.  He, however,  with certainty states that a  panchnama  

was prepared and it was signed.  In his cross examination he  

categorically stated “the knife was recovered before me when I

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was called in Kotwali by Vermaji  and I had seen that knife in  

kotwali and the knife had been recovered before the statement  

of Dinesh was recorded’.  This evidence of the witness has to  

be read in conjunction with the statement of PW8 and PW 2.  

Upon such reading recovery of the knife from the house of the  

accused  is  established.  Further,  the  doctor  has  referred  to  

various  injuries  on  the  body  of  the  deceased  including  

abrasions and small cuts which could have been a result of  

pelting  of  stones  by  Nand Kishore  upon the  deceased even  

after  he  had  fallen  on  the  ground.   While  rejecting  the  

contention with respect to the second alleged discrepancy, it  

must  be  borne in  mind that  the  Court  has to examine the  

statement of a witness as a whole.  The Court may not be in a  

correct  position to arrive  at  any final  conclusion while  only  

reading  or  relying  upon  a  sentence  in  the  statement  of  a  

witness that too by reading it out of context.    The evidentiary  

value  of  a  statement  should  normally  be  appreciated  in  its  

correct perspective, attendant circumstances and the context  

in  which  the  statement  was  made.  As  far  as  the  alleged  

discrepancy with regard to recovery of knife is concerned, it is

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not possible for the Court to attach undue importance to this  

aspect. The court has to form an opinion about the credibility  

of  the  witness  and  record  a  finding  as  to  whether  his  

deposition inspires confidence.  “Exaggerations  per se do not  

render the evidence brittle.  But it can be one of the factors to  

test  credibility  of  the  prosecution  version,  when  the  entire  

evidence is put in a crucible for being tested on the touchstone  

of  credibility.”   Therefore,  mere  marginal  variations  in  the  

statements of a witness cannot be dubbed as improvements,  

as the same may be elaborations of the statement made by the  

witness earlier.  “Irrelevant details  which do not in any way  

corrode  the  credibility  of  a  witness  cannot  be  labelled  as  

omissions or contradictions.”  The omissions which amount to  

contradictions in material particulars, i.e., materially affect the  

trial or core of the prosecution’s case, render the testimony of  

the witness liable to be discredited.  [Vide:  State Represented  

by Inspector of Police v. Saravanan & Anr. [(2008) 17 SCC 587],  

Arumugam v. State [(2008) 15 SCC 590] and Mahendra Pratap  

Singh v. State of Uttar Pradesh [(2009) 11 SCC 334].  The knife  

was recovered in furtherance to the disclosure statement made

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by  Dinesh  Dhimar.   The  recovery  memo  which  was  duly  

proved  in  accordance  with  law,  according  to  the  medical  

evidence given by PW5, and the statement of the investigating  

officer, PW8, clearly show that knife was recovered from the  

house of Dinesh Dhimar and the injuries on the body of the  

deceased  were  inflicted  by  the  knife.   Thus,  these  alleged  

discrepancies can hardly be of any advantage to the accused.   

10. Another very significant aspect of  this case is that the  

prosecution  had  not  examined  Rajendra  and  Sunil  as  

prosecution witnesses and this issue was raised on behalf of  

the defence that the Court should draw adverse inference from  

non-examination of  these witnesses.   Witness Rajendra was  

given up as the prosecution felt that he would be hostile to the  

case of the prosecution but Sunil himself was examined by the  

accused as  its  own witness.   Once  Sunil  was examined  as  

witness of the defence, the objection taken by the appellant  

loses its legal content.  DW1, though appeared as witness for  

the defence, supported the case of the prosecution resulting in  

his  being  declared  as  a  hostile  witness  by  the  counsel  

appearing for the accused.  Therefore, the statement of DW1

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could  be  and  has  rightly  been  relied  upon  by  the  learned  

Sessions Judge while  convicting the accused of  the offence.  

The statement of DW1 has fully corroborated the statement of  

PW1.  He stated that there were nearly 20 to 30 houses in that  

Mohalla and denied the suggestion made to him by the defence  

counsel that he had not seen anything on the fateful day and  

was  not  witness  to  the  occurrence.   He  also,  specifically,  

denied the suggestion that he was related to the family of the  

deceased.  In his cross-examination, he has clearly stated that  

Mahesh Dhimar  had caught  hold of  both the  hands of  the  

deceased and Dinesh Dhimar had given blows on the chest of  

the deceased by a knife and Nand Kishore had pelted stones  

on the deceased.  Lastly, he also stated that he had taken the  

deceased to the hospital along with PW1.  Confronted with this  

evidence, the appellant can hardly even attempt to argue that  

there  is  no  definite  evidence  on  record  to  prove  the  

commission of the offence by the appellant.  There is definite  

documentary, ocular and medical evidence and more definitely  

statement  of  defence  witness  itself  to  repel  the  plea  of  the  

appellant that he has been falsely implicated in the case.  

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11. Now,  we  would examine  whether  the  conviction of  the  

appellant under Section 302 with the aid of Section 34 by the  

courts  is  sustainable  in law or  not.   For  the  application of  

Section 34 IPC, it is difficult to state any hard and fast rule  

which can be applied universally to all cases.  It will always  

depend upon the facts and circumstances of the given case  

whether the persons involved in the commission of the crime  

with  a  common  intention  can  be  held  guilty  of  the  main  

offence committed by them together.  Provisions of Section 34  

IPC come to the aid of law while dealing with cases of criminal  

offence  committed  by  a  group  of  persons  with  common  

intention.  Section 34 reads as under :

“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.”

A  bare  reading  of  this  section  shows  that  the  section  

could be dissected as follows :

(a) Criminal act is done by several persons;

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(b) Such act is done in furtherance of the common intention  

of all; and

(c) Each of such persons is liable for that Act in the same  

manner as if it were done by him alone.

In other words, these three ingredients would guide the  

court  is  determining  whether  an  accused  is  liable  to  be  

convicted with the aid of Section 34.  While first two are the  

acts which are attributable and have to be proved as actions of  

the accused, the third is the consequence.  Once criminal act  

and  common  intentions  are  proved,  then  by  fiction  of  law,  

criminal  liability  of  having  done  that  act  by  each  person  

individually  would  arise.   The  criminal  act,  according  to  

Section  34  IPC  must  be  done  by  several  persons.   The  

emphasis in this part of the section is on the word ‘done’.  It  

only flows from this that before a person can be convicted by  

following the provisions of Section 34, that person must have  

done something along with other persons.  Some individual  

participation in the commission of the criminal act would be  

the requirement.  Every individual member of the entire group  

charged  with  the  aid  of  Section  34  must,  therefore,  be  a

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participant  in  the  joint  act  which  is  the  result  of  their  

combined activity.  Under Section 34, every individual offender  

is  associated  with  the  criminal  act  which  constitutes  the  

offence  both  physically  as  well  as  mentally,  i.e.,  he  is  a  

participant not only in what has been described as a common  

act  but  also  what  is  termed as  the  common intention and,  

therefore, in both these respects his individual role is put into  

serious jeopardy although this individual role might be a part  

of a common scheme in which others have also joined him and  

played a role that is similar or different.  But referring to the  

common intention, it needs to be clarified that the courts must  

keep in mind the fine distinction between ‘common intention’  

on the one hand and ‘mens rea’  as  understood in  criminal  

jurisprudence on the other.  Common intention is not alike or  

identical to mens rea.  The latter may be co-incidental with or  

collateral to the former but they are distinct and different.   

12. Section 34 also deals with constructive criminal liability.  

It  provides  that  where  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

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was done by him alone.  If the common intention leads to the  

commission of the criminal offence charged, each one of the  

persons sharing the common intention is constructively liable  

for the criminal act done by one of them.  {Refer to Brathi alias   

Sukhdev Singh v. State of Punjab [(1991) 1 SCC 519]}.

13. Another  aspect  which  the  Court  has  to  keep  in  mind  

while dealing with such cases is that the common intention or  

state of mind and the physical act, both may be arrived at the  

spot  and  essentially  may  not  be  the  result  of  any  pre-

determined plan to commit such an offence.  This will always  

depend on the facts and circumstances of the case, like in the  

present case Mahavir, all alone and unarmed went to demand  

money from Mahesh but Mahesh, Dinesh and Nand Kishore  

got together outside their  house and as is  evident from the  

statement of the witnesses, they not only became aggressive  

but also committed a crime and went to the extent of stabbing  

him  over  and  over  again  at  most  vital  parts  of  the  body  

puncturing  both  the  heart  and  the  lung  as  well  as  pelting  

stones at him even when he fell on the ground.  But for their  

participation and a clear frame of mind to kill the deceased,

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Dinesh probably  would not  have  been able  to  kill  Mahavir.  

The  role  attributable  to  each  one  of  them,  thus,  clearly  

demonstrates common intention and common participation to  

achieve the object of killing the deceased.  In other words, the  

criminal act was done with the common intention to kill the  

deceased Mahavir.  The trial court has rightly noticed in its  

judgment that all the accused persons coming together in the  

night  time and giving such serious blows and injuries  with  

active participation shows a common intention to murder the  

deceased.  In these circumstances, the conclusions arrived at  

by the trial Court and the High Court would not call for any  

interference.

14. The  learned  counsel  appearing  for  the  appellant  had  

relied  upon  the  judgment  of  this  Court  in  the  case  of  

Shivalingappa  Kallayanappa  &  Ors. v.  State  of  Karnataka  

[1994 Supp. (3) SCC 235] to contend that they could not be  

charged or convicted for an offence under Section 302 with the  

aid of Section 34 IPC.  The said judgment has rightly been  

distinguished  by  the  High  Court  in  the  judgment  under  

appeal.  In that case, the Supreme Court had considered the

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role of each individual and recorded a finding that there was  

no  common  object  on  the  part  of  the  accused  to  commit  

murder.  In that case, the court was primarily concerned with  

the common object  falling  within the ambit  of  Section  149,  

IPC.  In fact, Section 34 IPC has not even been referred to in  

the afore-referred judgment of this Court.   

15. Another case to which attention of this Court was invited  

is Jai Bhagwan & Ors. v. State of Haryana [(1999) 3 SCC 102].  

In that case also, the Court had discussed the scope of Section  

34 IPC and held that common intention and participation of  

the accused in commission of the offence are the ingredients  

which should be satisfied before a person could be convicted  

with the aid of Section 34 IPC.  The Court held as under :

“10. 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  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

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from the facts and circumstances of each  case.”

16. The facts  of  the  present case  examined in  light  of  the  

above principles do not leave any doubt in our minds that all  

the three accused had a common intention in commission of  

this brutal crime.  Each one of them participated though the  

vital  blows were given by Dinesh Dhimar.   But  for  Mahesh  

catching  hold  of  arms  of  the  deceased  probably  the  death  

could have been avoided.  Nand Kishore showed no mercy and  

continued  pelting  stones  on  the  deceased  even  when  he  

collapsed to the ground.  The prosecution has been able to  

establish the charge beyond reasonable doubt.   

17. The judgments of the courts below do not suffer from any  

legal infirmity or appreciation of evidence.  While finding no  

merit in the appeal, we dismiss the same.

....................................J.  [Dr. B.S. Chauhan]

....................................J.

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[Swatanter Kumar] New Delhi; July 7, 2011