REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.286-288 of 2019  (arising out of SLP (Crl.) Nos.1564-1566/2015)

ASIF KHAN   ...APPELLANT(S)  

VERSUS

STATE OF MAHARASHTRA & ANR.         ...RESPONDENT(S)  

J U D G M E N T ASHOK BHUSHAN,J.

These  appeals  have  been  filed  against  the

judgment  of  the  High  Court  dated  05.05.2014

dismissing  the  Criminal  Appeals  filed  by  the

appellant and allowing the Criminal Appeals of the

complainant  as  well  as  that  of  the  State  of

Maharashtra.  

2. As  per  the  prosecution  story  on  21.10.2010  at

about  8  AM  in  the  morning,  the  complainant  was

standing  at  Bazar  Pati  Chowk  and  his  brother

Sardarkha was standing at some distance.  At that

time, it was alleged that all the accused came there

and asked the complainant to allow them to take water

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from  the  common  well  for  one  day  due  to  load

shedding.  Complainant refused to give excess water

and asked the accused to take water by rotation.  At

that time, they abused complainant and accused No.1,

i.e. Nasibkha assaulted him.  His brother Sardarkha

who  was  standing  at  some  distance,  intervened.

Thereafter, the accused Nos.1 and 2, i.e., Nasibkha

and Asifkha went to their house on motorcycle and

immediately  returned.   The  accused  No.1  challenged

Sardarkha to stop him from drawing water.  Sardarkha

tried  to  convince  him.   Accused  No.1  assaulted

Sardarkha by knife on his right rib and accused No.2

caught hold the neck of Sardarkha.  The accused Nos.

3 and 4, i.e., Jabbarkha and Ansarkha punched the

complainant.  Immediately  after  the  incidents,

Sardarkha was taken to Ghati Hospital, Aurangabad by

Jeep  and  complainant  and  others  followed  him  in

another jeep.  He was admitted in the hospital at

about 10 AM, where the doctor declared him dead.  

3. A First Information Report was lodged on the same

day under Sections 302, 323, 504, and 506 read with

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Section 34 of the Indian Penal Code against all the

accused, who were named in the FIR.  Accused were

arrested on 22.10.2010.  On 26.10.2010, accused No.1

gave a memorandum of statement under Section 27 of

the Indian Evidence Act and in consequent to the said

memorandum weapon was recovered.  After completion of

the investigation, charge sheet was filed under the

aforesaid sections.   

4. All the accused were sent for trial.  In the

trial,  complainant  PW1  Kalekhan  proved  the

prosecution case, other eye-witnesses - PW2 Salimkha

Abbaskha  Pathan  and  PW4,  Ajijkha  Sardarkha  also

proved  the  prosecution  story,  PW5,  Dr.  Navinkumar

Varma proved the post-mortem report and PW6 and PW7

were  panch  witnesses.   There  were  other  formal

witnesses, who deposed before the trial court. The

trial  court,  vide  its  judgment  dated  29.02.2012,

after discussing the role of each of the accused came

to the following conclusion in Paragraph No. 39:-

“39.  There are four accused in the crime and  as  per  the  case  of  the  prosecution, they  shared  common  intention  to  commit

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offence.   If  the  evidence  of  prosecution witnesses in this regard is perused, P.W.1, 2  and  4,  who  are  eye-witnesses, categorically  stated  that  accused  No.2 caught  hold  the  neck  of  Sardarkha  and accused No.1 inflicted knife blow on right rib.  They have stated that accused Nos.3 and  4  were  present  and  they  assaulted complainant by fist and blows.  There is no evidence that accused Nos.3 and 4 provoked accused Nos.1 and 2 to attack.  There is no evidence of any prior concert or meeting of mind  of  accused  Nos.3  and  4  in  sharing common  intention  of  accused  Nos.1  and  2. Before convicting accused with the aid of Section 34 of Indian Penal Code, it has to be proved that there was pre-arranged plan to commit the offence………”

5. The  trial  court  held  that  complicity  of  the

accused Nos.1 and 2, i.e., accused Nasibkha and Asif

Khan is established.  The trial court, however, came

to the conclusion that accused Nos.1 and 2 were not

guilty of having committed offence under Section 302

read with 34 IPC, however, they can be convicted of

having committed the offence punishable under Section

304 Part II read with Section 34, the accused Nos.1

and 2 were sentenced to undergo imprisonment for 10

years and to pay fine of Rs.5,000/-.  All the accused

were  acquitted  of  the  offence  punishable  under

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Sections 323, 504 and 506 read with Section 34 of

Indian  Penal  Code.   Accused  Nos.  3  and  4  were

acquitted.   

6. Against  the  judgment  of  the  trial  court  dated

29.02.2012,  accused,  the  complainant  and  the  State

filed  appeals.   Accused  were  aggrieved  by  their

conviction under Section 304 Part II, the complainant

and the State were aggrieved of acquittal of accused

under Section 302 read with Section 34.  The High

Court after considering the entire evidence on record

came to following conclusions in Paragraph No.23 and

30:-

“23. After  analytical  survey  of  the prosecution case, there is no doubt in our mind that accused no. 2 Asifkha caught hold neck  of  deceased  Sardarkha  and  thereupon accused  no.  1  Nasibkha  made  a  murderous assault  by  means  of  knife  on  deceased Sardarkha.  Therefore,  accused  no.  1 Nasibkha and accused no. 2 Asifkha are held to be guilty of homicidal death of deceased Sardarkha.

30. True it is, they were demanding water for one more day from the first informant, which was refused by him, thereby enraging them to hurl abuses and picked up a quarrel with PW 1 Kalekha, which was intervened by the deceased. Refusal of giving water for

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one more day culminating into giving abuses to PW 1 Kalekha and even quarrel with him, may  be  most  natural,  however,  on  the intervention  of  the  deceased  it  was pacified.  Not  only  that,  consistent evidence  of  the  prosecution  shows  that thereafter both accused no. 1 Nasibkha and accused  no.  2  Asifkha  left  the  place  on motor cycle.

They  arrived  at  the  spot  after  ten minutes. This period was enough for their cooling in respect of the first incident, however,  the  prosecution  evidence  shows that  after  ten  minutes,  they,  not  only returned  to  the  spot,  but  they  returned with deadly knife with them. This act on the part of accused nos. 1 and 2 clearly establishes  that  with  premeditation  they returned to the spot. They returned to the spot  with  a  specific  intention.  Further, from  the  evidence,  it  is  clear  that  on reaching  to  the  spot,  they  immediately caught  deceased  Sardarkha  and  gave  knife blow as per the role ascribed to them by the  prosecution  witnesses.  This  fact clearly establishes that both the accused nos. 1 and 2 were nursing grudge against the deceased, because at the first instance it  was  the  deceased  who  rescued  PW  1 Kalekha from the quarrel with them.”

7. The High Court did not approve the reasoning of

the trial court that there was no intention of the

accused to kill the deceased.  The High Court allowed

the  appeals  of  the  State  and  the  complainant  and

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convicted the accused Nos.1 and 2 under Section 302

read with Section 34 IPC.  The criminal appeals filed

by the accused were dismissed.  Acquittal of accused

Nos.3 and 4 was confirmed.  Aggrieved against the

judgment of the High Court, these appeals have been

filed.  

8. This Court heard the Special Leave Petition on

06.02.2015 and dismissed the Special Leave Petition

qua  petitioner  No.1,  i.e.  Nasibkhan.  Notice  was

issued  in  the  Special  Leave  Petition  insofar  as

petitioner No.2, i.e., Asif Khan is concerned.  These

appeals, thus, are considered only on behalf of Asif

Khan.   

9. Learned counsel for the appellant submits that an

altercation  took  place  between  the  parties  and

consequent  to  that  incident  has  happened  due  to

sudden fight between the parties and there was no

intention  on  the  part  of  the  accused  to  kill  the

deceased.  He submits that at best the conviction

could have been recorded only under Section 304 Part

II as has been held by the trial court.  He further

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submits that with regard to appellant, in the First

Information  Report,  although  it  is  alleged  that

appellant  hold  hands  of  the  deceased  but  in  the

evidence, it is sought to be stated that appellant

held the neck of the deceased.    Learned counsel for

the appellant further submits that there could be no

conviction under Section 34 for the appellant since

there is no evidence of any pre-planned murder of

deceased.   Learned  counsel  for  the  appellant  has

placed reliance on judgments of this Court in Kulwant

Rai Vs. State of Punjab, (1981) 4 SCC 245; Ramesh

Vithalrao Thakre and Another Vs. State of Mahrashtra,

(2009)  17  SCC  438 and  Surain  Singh  Vs.  State  of

Punjab, (2017) 5 SCC 796.

10. Learned  counsel  for  the  State  refuting  the

submission of the counsel for the appellant contends

that High Court has rightly convicted the appellant

under Section 302 read with Section 34 as after the

first  incident,  when  there  was  altercation  between

the parties, accused Nos.1 and 2 went back on the

motorcycle and returned after 10 minutes with deadly

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weapon,  i.e.,  knife,  by  which  the  deceased  was

stabbed.  The appellant held the neck of the deceased

and accused No.1 stabbed the deceased.  The crime was

committed  by  accused  Nos.1  and  2  with  common

intention,  hence  they  have  been  rightly  convicted

under Section 302.  It is submitted that present is

not a case for conviction under Section 304 Part II,

as the accused after first incident returned and came

back with deadly weapon and with intention to kill

has stabbed the deceased.  All the eye-witnesses have

proved the prosecution case.

11. We have considered the submissions of the learned

counsel for the parties and have perused the records.

12. The first submission of the learned counsel for

the appellant is that, at best, the present was a

case for conviction under Section 304 part II and it

was not a case for conviction under Section 302.  The

High Court has elaborately considered the evidence to

find out as to whether conviction in the present case

ought to have been under Section 302 or under Section

304  Part  II  as  held  by  the  trial  court.   The

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consideration of the High Court in Paragraph Nos. 23

and  30  have  already  been  extracted  above.   With

regard to observation of trial court that it is not

proved  that  accused  had  intention  to  kill  the

deceased, the High Court held following in Paragraph

Nos.33 and 34:-

“33. In the present case, the learned trial court  has  observed  in  its  judgment paragraph 43 and recorded a finding that, there  was  an  intention  on  the  part  of accused nos. 1 and 2 to cause injury to the deceased, however, the learned court below in  one  breath  gives  reasoning  that,  from the material on record, it does not appear that the intention of the accused was to kill  the  deceased;  however,  in  the  next breath,  the  learned  Judge  reasoned  that, accused no. 1 was armed with knife, blade of which itself was 15.5 cm. in length, and therefore,  the  accused  should  have  been aware that if he stabbed the deceased, he may be acting in such a manner that the injury he caused is likely to cause death, and  still  the  learned  court  below  has acquitted  accused  nos.  1  and  2  under Section 302 of the Indian Penal Code.

34. This  appreciation  on  the  part  of learned  court  below,  in  our  view,  is perverse.  Once  the  intention  is established,  and  in  the  light  of  medical evidence and existence of the injury found on the dead body of Sardarkha, there is no escape  but  to  record  a  finding  of  guilt against the accused nos. 1 and 2 for having

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committed the offence under Section 302 of the Indian Penal code.

The learned counsel for accused nos. 1 and 2 found it very difficult and could not bring their case in any of the Exceptions of Section 300 of the Indian Penal Code.”

13. High  Court  has  also  noticed  that  the  accused

Nos.1 and 2 after the first incident went back on a

motorcycle  and  came  after  10  minutes  with  deadly

weapon, i.e., knife, which had a blade of 15.5 cm.

There  can  be  no  doubt  about  the  intention  of  the

accused,  who  held  the  neck  of  the  deceased  and

accused No.1 stabbed.  PW5, Dr. Naveenkumar Varma,

who conducted the post-mortem proved in his evidence

that Injury No.17 was sufficient in the normal course

to cause death.  Learned counsel for the appellant

submitted that the injury, which was caused on right

flank region in right hypochondric region was not on

a vital part.  The High Court while considering the

injury has made following observations:-

“The said injury is mentioned at column 17 in the postmortem report Exh. 56, duly proved  by  Dr.  Navinkumar  Varma  (PW  5). According  to  column  no.  20  of  postmortem report  Exh.  56,  right  9th  rib  cut  from

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lower margin in 0.5 cm. area cut ends shows infiltration staining.

The doctor also noted haematoma on right flank region around stab injury dark red in colour. Liver stab wound of 3 x 0.3 x 11 cm.  in  right  lobe  of  liver,  which  he mentioned  in  column  no.  21  of  postmortem report.

According to autopsy surgeon Dr. Varma, the  cause  of  death  is,  shock  and haemorrhage  due  to  stab  injury  to  liver. The  doctor  found  that  the  injury  was antemortem.”

14. The submission of the appellant that injury was

not on vital part cannot be accepted.  It is further

to  be  noted  that  judgment  of  the  High  Court

convicting  the  accused  No.1  under  Section  302  has

already been upheld by dismissing the Special Leave

Petition on 06.02.2015 on behalf of Nasib Khan.  We,

thus, do not find any reason to take a different view

to  one  taken  by  the  High  Court  that  accused  were

liable for conviction under Section 302.  In Kulwant

Rai (supra), one dagger blow was given in epigastrium

area.   This  Court  noted  that  there  was  no

altercation, there was no premeditation and the case

was of a hit and run.  In the above circumstances,

the court held that it was a case, which fall under

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Section 304 Part II, in paragraph No.3, following has

been held:-

“3. When  the  matter  was  before  the  High Court it was strenuously urged that in the circumstances of the case para 1 of Section 300  would  not  be  attracted  because  it cannot  be  said  that  the  accused  had  the intention to commit murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by Para 3 of Section 300 of the Indian  Penal  Code  in  that  not  only  the accused intended to inflict that particular injury  but  the  injury  intended  to  be inflicted  was  by  objective  medical  test found  to  be  sufficient  in  the  ordinary course  of  nature  to  cause  death.  The question  is  in  the  circumstance  in  which the offence came to be committed, could it ever be said that the accused intended to inflict  that  injury  which  proved  to  be fatal. To repeat, there was an altercation. There  was  no  premeditation.  It  was something like hit and run. In such a case, Para  3  of  Section  300  would  not  be attracted  because  it  cannot  be  said  that the  accused  intended  to  inflict  that particular  injury  which  was  ultimately found  to  have  been  inflicted.  In  the circumstances  herein  discussed,  it  would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under Section 304 Part II, Indian Penal Code.”

15. The above case is clearly distinguishable since

present is a case where accused Nos.1 and 2 after

first incident, in which there was altercation with

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the  informant  and  deceased,  returned  back  on

motorcycle and came back after 10 minutes alongwith

weapon, hence the above judgment is not applicable.

Coming to case relied on by appellant, i.e.,  Ramesh

Vithalrao Thakre (supra).  In the above case, the

accused had previous enmity with one Ashok and they

have  gone  to  inflict  injury  on  Ashok.   Sister  of

Ashok, Rekha came in between and she received single

injury on her chest.  In the above circumstances,

this Court held that case will fall under Section 304

Part  II  of  IPC.    In  Paragraph  Nos.  9  and  11,

following has been held:-

“9. There is no denying the fact that one single injury was caused to the deceased by Ramesh when Rekha intervened to save her brother  Ashok  from  being  assaulted.  The primary target of Ramesh was Ashok, who got saved when Rekha received the injury on her chest. After causing the single injury to Rekha, it is the prosecution case itself, that Ramesh did not cause any other injury to Rekha nor even to Ashok, PW 1.

11. We,  accordingly  set  aside  the conviction and sentence of Ramesh for the offence  under  Sections  302/34  IPC  and instead  find  him  guilty  for  the  offence under Section 304 Pt. II IPC and sentence him to five years’ rigorous imprisonment and  a  fine  of  Rs.  4000.  In  default  of payment of fine, the appellant shall suffer

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rigorous imprisonment for a period of one year. The fine shall be paid within three months and on realisation shall be paid to the mother of the deceased, PW 2, Janabai.”

16. The above case is clearly distinguishable since

in that case, they had not gone to inflict injury on

the deceased sister of Ashok rather they had gone to

inflict injury on Ashok and since she intervened to

save her brother and got assaulted, it was not pre-

planned.  But, in the present case accused Nos.1 and

2 after first incident, returned back on motorcycle

and  came  back  after  10  minutes  alongwith  weapon,

hence  the  above  judgment  is  not  applicable.   The

third  case  relied  by  the  learned  counsel  for  the

appellant Surain Singh (supra) was a case where this

Court held conviction under Section 304 Part II on

the  ground  that  attack  was  not  premeditated  and

preplanned.  In Paragraph Nos. 21 and 23, following

has been held:-   

“21. In  the  instant  case,  it  is  evident from the materials on record that there was bitter  hostility  between  the  warring factions  to  which  the  accused  and  the deceased belonged. Criminal litigation was going on between these factions. It is also proved from the material on record that the attack was not premeditated and preplanned.

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Both the parties were present in the Court of  Executive  Magistrate,  Faridkot  at  the relevant  time  with  regard  to  the proceedings under Sections 107/151 of the Code.  When  the  appellant-accused  objected to the presence of a member of the opposite side,  the  scuffle  started  between  the parties  which  resulted  into  death  of  two persons.  The  conduct  of  the  appellant- accused that he at once took out his kirpan and  started  giving  blows  to  the  opposite party  proves  that  the  attack  was  not premeditated and it was because of the spur of the moment and without any intention to cause death. The occasion for sudden fight must  not  only  be  sudden  but  the  party assaulted must be on an equal footing in point of defence, at least at the onset.

23. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to  the  view  that  in  the  facts  and circumstances  of  the  present  case,  it cannot be said that the appellant-accused had any intention of causing the death of the deceased when he committed the act in question.  The  incident  took  place  out  of grave and sudden provocation and hence the accused  is  entitled  to  the  benefit  of Section 300 Exception 4 IPC.”

17. The above case is also clearly distinguishable

and not applicable in the facts of the present case.

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18. Now, we come to conviction of the appellant under

Section 34.  The submission made by the appellant is

that there could be no conviction under Section 34

for the appellant since there is no evidence of any

pre-planned  murder  of  deceased.   Insofar  as  the

submission of the learned counsel for the appellant

that  in  the  First  Information  Report,  it  has

mentioned  that  appellant  had  held  hands  of  the

deceased and in the evidence before the Court, it was

mentioned  that  appellant  held  the  neck  of  the

deceased.  All the three eye-witnesses, PW1, PW2 and

PW4, who appeared before the Court have stated that

Asif Khan caught hold of the neck of Sardarkha and

accused No.1 assaulted him by knife.  Paragraph No. 4

of the examination-in-chief of PW1 is as follows:-

“4.  After sometime they came back.  At that time accused No.1 told me that how you will not allow me to take more water, I will see you.  At that time accused No.2 Asifkhan caught hold neck of Sardarkhan and accused  No.1  Nasibkhan  assaulted  him  by knife on the right side of his stomach……”

19. In the cross-examination, PW1 again stated that

accused No.2 caught hold of neck of his brother.  The

evidence of PW2 and PW4 is also consistent that Asif

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Khan caught hold the neck of Sardarkha and accused

No.1 assaulted Sardarkha on his right rib by knife.

Whether, in the facts of the present case and the

evidence on record, the appellant could be convicted

under  Section  302  with  aid  of  Section  34  is  a

question to be answered.   

20. The test for applicability of Section 34 in a

fact situation of an offence has been clearly and

categorically laid down by this Court. Section 34 of

IPC provides as follows:-   

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.

21. The judgment of Privy Council in Mehbub Shah Vs.

Emperor, AIR 1945 PC 118 has elaborately considered

the  ingredients  under  Section  34  and  the  said

judgment  of  Privy  Council  has  been  relied  on  and

approved by this Court time and again.  The Privy

Council in above case laid down that under Section

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34, 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.  In Paragraph No.13,

following has been laid down:-

“13. In  1870,  it  was  amended  by  the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each," so as to make the object of the section clear. Section 34 lays down a principle of joint liability in the doing of a criminal act. The  section  does  not  say  "the  common intentions  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 done 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  prearranged  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

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act  or  conduct  or  other  relevant circumstances of the case.”

22. In  Pandurang and Others Vs. State of Hyderabad,

AIR 1955 SC 216,  Justice Vivian Bose, speaking for

the Bench considered the ingredients of Section 34

and relying on Privy Council judgment in Mehbub Shah

Vs. Emperor (supra) laid down following in Paragraph

Nos. 32 to 34:-

“32. As we have just said, the witnesses arrived  at  a  time  when  the  beating  was already  in  progress.  They  knew  nothing about  what  went  before.  We  are  not satisfied  that  Tukaram  is  proved  to  have done anything except be present, and even if it he accepted that Nilia aimed a blow at  Ramchander’s  thigh  he  was  so  half hearted about it that it did not even hit him;  and  in  Pandurang  case,  though  armed with a lethal weapon, he did no more than inflict a comparatively light head injury. It is true they all ran away when the eye- witnesses arrived and later absconded, but there is nothing to indicate that they ran away together as a body, or that they met afterwards.  Rasikabai  says  that  the “accused” raised their axes and sticks and threatened her when she called out to them, but  that  again  is  an  all  embracing statement which we are not prepared to take literally  in  the  absence  of  further particulars. People do not ordinarily act in unison like a Greek chorus and, quite apart from dishonesty, this is a favourite device  with  witnesses  who  are  either  not mentally alert or are mentally lazy and are given to loose thinking. They are often apt

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to say “all” even when they only saw “some” because  they  are  too  lazy,  mentally,  to differentiate.  Unless  therefore  a  witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value. We are unable to deduce any prior arrangement to murder from these facts.

33. Now in the case of Section 34 we think it  is  well  established  that  a  common intention  presupposes  prior  concert.  It 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 them all: Mahbub Shah v. King Emperor. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously  attack  a  man  and  each  can have  the  same  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 because there was no prior meeting of minds to form a pre-arranged plan. 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 of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v.  King- Emperor and  Mahbub Shah v.  King- Emperor.  As  Their  Lordships  say  in  the latter case, “the partition which divides their  bounds  is  often  very  thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice”.

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34. The plan need not be elaborate, nor is a long interval of time required. It could arise  and  be  formed  suddenly,  as  for example when one man calls on bystanders to help him kill a given individual and they, either  by  their  words  or  their  acts, indicate their assent to him and join him in the assault. There is then the necessary meeting  of  the  minds.  There  is  a  pre- arranged  plan  however  hastily  formed  and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough,  as  in  the  latter  Privy  Council case,  to  have  the  same  intention independently  of  each  other,  e.g.,  the intention  to  rescue  another  and,  if necessary, to kill those who oppose.”

23. The  Constitution  Bench  of  this  Court  in  Mohan

Singh and Anr. Vs. State of Punjab, AIR 1963 SC 174

had again reiterated the ingredients of Section 34.

Constitution Bench has also relied on and approved

the Privy Council judgment in Mehbub Shah Vs. Emperor

(supra)  noticing  the  essential  constituents  of

vicarious  liability  under  Section  34,  Justice

Gajendragadkar speaking  for  the  Bench  laid  down

following in Paragraph No.13:-

“13…………………………………The  essential  constituent of  the  vicarious  criminal  liability prescribed by Section 34 is the existence of  common  intention.  If  the  common intention in question animates the accused persons  and  if  the  said  common  intention leads  to  the  commission  of  the  criminal

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offence  charged,  each  of  the  persons sharing  the  common  intention  is constructively liable for the criminal act done  by  one  of  them.  Just  as  the combination  of  persons  sharing  the  same common object is one of the features of an unlawful  assembly,  so  the  existence  of  a combination  of  persons  sharing  the  same common intention is one of the features of Section 34. In some ways the two sections are  similar  and  in  some  cases  they  may overlap.  But,  nevertheless,  the  common intention which is the basis of Section 34 is different from the common object which is  the  basis  of  the  composition  of  an unlawful assembly. Common intention denotes action-in-concert  and  necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may  be  different;  may  vary  in  their character, but they are all actuated by the same  common  intention.  It  is  now  well- settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed  by  the  Privy  Council  in  Mahbub Shah v.  King-Emperor4 common  intention within the meaning of Section 34 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  and  that  the  inference  of common  intention  should  never  be  reached unless  it  is  a  necessary  inference deducible  from  the  circumstances  of  the case.

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24. The  principles  as  noticed  above  have  been

reiterated  time  and  again.   We  may  refer  to  the

judgment of this Court in Narinder Singh and Another

Vs. State of Punjab, (2000) 4 SCC 603, the facts in

the above case has been noticed in Paragraph No.5 of

the judgment, which are to the following effect:-

“5. On 6-11-1989 Gurdev Singh with his son Hardip Singh (PW 2) was going on a bicycle to  Village  Jagatpur  in  order  to  withdraw the  money  from  his  account  in  the Cooperative  Bank  there.  Hardip  Singh  was pedalling the cycle while Gurdev Singh was sitting on its carrier. Around 12 o’clock when  they  reached  the  metalled  road  near the field of one Gurmej Singh, resident of Jagatpur, they saw the appellants sitting near a tree. They got up and intercepted Gurdev  Singh  and  Hardip  Singh.  Both  got down from their cycle. Appellant Narinder Singh  proclaimed  that  they  would  teach Gurdev Singh a lesson as he had not vacated the office of Granthi of the Gurudwara as per their demand. He grabbed Gurdev Singh by  his  arms  while  the  second  appellant Ravinder  Singh  alias  Khanna  took  out  a gatra  kirpan,  which  he  was  wearing  and stabbed Gurdev Singh with the gatra kirpan on the left side of his neck. Gurdev Singh after  receiving  the  kirpan-blow  fell down…………………”  

25. The  role  assigned  was  that  he  grabbed  Gurdev

Singh by his arms while the second appellant stabbed

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Gurdev  Singh  with  kirpan.   In  Paragraph  No.5,

following has been stated:-

“5.  …………………………He grabbed Gurdev Singh by his  arms  while  the  second  appellant Ravinder  Singh  alias  Khanna  took  out  a gatra  kirpan,  which  he  was  wearing  and stabbed Gurdev Singh with the gatra kirpan on the left side of his neck. Gurdev Singh after  receiving  the  kirpan-blow  fell down…………………”  

26. This  Court  in  Paragraph  No.16  of  the  judgment

held  that  both  the  appellants  had  committed  the

murder of Gurdev Singh.  It was held that it is not

material to bring the case under Section 34, as to

who inflicted the fatal blow, following was laid down

in Paragraph No.16:-

“16. ……………Both the appellants committed the murder  of  Gurdev  Singh,  Granthi  in furtherance of their common intention. It was  submitted  by  Mr  Gupta  that  Narinder Singh  could  not  have  been  convicted  with the aid of Section 34 as this section is nowhere mentioned in the impugned judgment. Mention of the section in the judgment is not  the  requirement  of  law  to  convict  a person. If the ingredients of the offence are present, conviction can be made. It is not  material  to  bring  the  case  under Section  34  IPC  as  to  who,  in  fact, inflicted  the  fatal  blow.  The  High  Court has  rightly  interfered  in  the  matter  and sentenced the appellants accordingly.”

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27. To the same effect is the judgment of this Court

in Raju Pandurang Mahale vs. State of Mahrashtra and

Another, (2004) 4 SCC 371.  Another judgment, which

is  relevant  for  the  present  case  is  the  case  of

Murari Thakur and Another Vs. State of Bihar, (2009)

16 SCC 256.  In the above case, the main plea of the

accused  was  that  he  had  caught  the  legs  of  the

deceased whereas third accused cut him with his sharp

edged weapon.  In paragraph No.7, following was laid

down:-

“7. We agree with the view taken by the High  Court  and  the  trial  court  that  the accused  had  committed  murder  of  deceased Bal Krishna Mishra after overpowering him in furtherance of their common intention on 26-8-1998 at 4 p.m. No doubt it was Sunil Kumar, who is not before us, who cut the neck  of  the  deceased  but  the  appellants before us (Murari Thakur and Sudhir Thakur) also  participated  in  the  murder.  Murari Thakur had caught the legs of the deceased and Sudhir Thakur sat on the back of the deceased at the time of commission of this murder.  Hence,  Section  34  IPC  is  clearly applicable in this case.”

28. When we look into the evidence in the present

case, in light of the principles as enunciated above,

it  is  clear  that  common  intention  of  the  accused

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Nos.1 and 2 is fully established by the circumstances

and events unfolded in the prosecution story, duly

corroborated by PW1, PW2 and PW4.  After altercation

took place between accused No.1 and informant, the

deceased,  who  was  brother  of  informant  came  and

intervened in the matter, due to which the accused

Nos.1 and 2 immediately returned from the spot in a

motorcycle and came back after 10 minutes armed with

deadly weapon.  When both the accused returned after

altercation  with  two  brothers  –  informant  and

deceased and came back after 10 minutes armed with

weapon, common intention is clearly established and

it cannot be said that there was no meeting of minds

between accused Nos.1 and 2, when they returned with

weapon and stabbed the deceased.  The accused No.2

held  the  neck  of  the  deceased  when  accused  No.1

stabbed him by knife.  The manner of incident also

indicate that both had common intention, hence, High

Court  did  not  commit  any  error  in  convicting  the

accused No.2 under Section 302 read with Section 34.

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29. We, thus, do not find any merit in the appeals,

the appeals are dismissed.           

......................J.                              (ASHOK BHUSHAN)

......................J.                              (K.M. JOSEPH)

New Delhi,  March 05, 2019.        

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