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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 592 OF 2008

STATE OF RAJASTHAN                   ...Appellant VERSUS

SHOBHA RAM                          ...Respondent WITH

CRIMINAL APPEAL NO. 593 OF 2008 SHRI RAM                    ...Appellant

VERSUS STATE OF RAJASTHAN                  ...Respondent

J U D G M E N T

1. These appeals are directed against the judgment and order  passed by the High Court of Judicature for Rajasthan, Jaipur  Bench,  Jaipur  in  Criminal  Appeal  No.  130  of  2000,  dated  03.06.2005. The High Court, while affirming the judgment of the  Trial Court in Sessions Case No. 49/99, dated 15.03.2000, has  convicted Shri Ram - A-1, under Section 302 read with Section 34  of the Indian Penal Code (“the IPC” for short) and reversed the  judgment of the Trial Court and acquitted Shobha Ram - A-2. It is  the  acquittal  of  A-2,  which  is  called  in  question  by  the  appellant – State of Rajasthan in Criminal Appeal No. 592 of

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2008.   

2. Criminal Appeal No. 593 of 2008 is preferred by Shri Ram -  A-1, being aggrieved by the order of conviction and sentence  passed by the Trial Court and confirmed by the High Court.

3. The  facts  in  brief  are:  The  incident  occurred  on  16.02.1999  at  about  5.30  p.m.   PW-1  -  Mohanlal,  who  is  the  brother of the deceased-Trilokchand had lodged the FIR before  S.H.O., Police Station Chechat, regarding the alleged assault on  the deceased by the accused persons. On the fateful day, the  appellants on account of their past enmity over the well located  in  their  lands,  formed  common  intention  to  cause  death  of  Trilokchand (since deceased) and in furtherance of their common  intention,  they  caused  injuries  to  the  deceased  with  stones  resulting in his death. The FIR was registered and after the  completion of the investigation, the investigating agency had  filed a charge-sheet against A-1 and A-2 under Section 302 read  with Section 34 of the IPC. The accused persons denied the charge  and  pleaded  false  implication  and,  therefore,  the  Trial  had  commenced against both the accused A-1 and A-2.   

4. During the Trial, the prosecution, in order to prove the  guilt  of  the  accused  persons  had  examined  several  witnesses  including  PW-1  and  PW-2       Smt.  Manoharbai  wife  of  the  deceased, PW-3 Bhawanishankar, PW-4 Kalulal, PW-6 Basantilal and

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other witnesses. Prosecution had projected PW-2 and PW-6 as eye  witnesses to the incident.

5. The Trial Court after appreciating the evidence of the eye  witnesses  and  others,  has  come  to  the  conclusion  that  the  testimony of PW-2 does not corroborate with the FIR and other  material available on record and, therefore, it could be safely  concluded  that  PW-2  had  not  seen  the  occurrence  of  actual  incident and therefore, the evidence at the most can only be an  hearsay evidence.  However, the Trial Court has believed the  evidence of PW-6, who, in his evidence, has categorically stated  that A-1 was assaulting the deceased with the stones and A-2 was  sitting on the chest of the deceased. The Trial Court placing  reliance on the evidence of PW-6 has convicted and sentenced the  accused persons under Section 302 read with Section 34 of the IPC  to suffer imprisonment for life and to pay a fine of Rs.1000/-  each,  and  in  default,  to  undergo  simple  imprisonment  for  a  further  period of six months.

6. Aggrieved by the order of conviction and sentence passed  by the Trial Court, the accused persons had filed appeals before  the High Court.  The High Court has confirmed the conviction and  sentence of A-1 passed by the Trial Court.  However, the High  Court has acquitted A-2, only on the ground that A-2 had not  actively  participated  in  the  commission  of  the  offence  and,

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therefore, the Trial Court was not justified in convicting A-2  for an offence punishable under Section 302 read with Section 34  of the IPC.  

7. It is the correctness or otherwise of the judgment and order  passed by the High Court which is called in question by the  appellants in this appeal.   8. We will first take up the appeal of A-1.  The Trial Court  and the High Court has convicted A-1 based on the evidence of the  sole eye-witness, namely, PW-6. In order to satisfy ourselves, we  have once again carefully analyzed the evidence on record and the  conviction of A-1 by the Trial Court with the aid of the sole  eye-witness of PW-6.  In his evidence PW-6 has stated, A-2 was  acting in concert with A-1 in causing the murder of the deceased,  wherein A-1 was assaulting the deceased with stones and A-2 had  facilitated the execution of the common design by sitting on the  chest of the deceased. Despite cross-examination at length,   PW- 6, has maintained his version, thereby, not leaving any scope for  the defense to elicit anything against the prosecution witness.  Therefore, in our opinion, the evidence of the said witness is of  sterling quality and therefore reliable and trustworthy, leaving  us  with  no  other  alternative  but  to  accept  his  evidence.  Therefore,  we  decline  to  interfere  with  the  finding  and  conclusion reached by the Trial Court insofar as convicting A-1

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is concerned.  Therefore, we reject the appeal filed by A-1 and  confirm the orders passed by the Trial Court and the High Court.  

9. While  considering  the  appeal  filed  by  the  State  of  Rajasthan,  we  have  carefully  perused  the  judgment  and  order  passed by the High Court.  The High Court has acquitted, A-2,  only on the ground that  merely sitting on the chest of the  deceased rules out the possibility of active participation by A-2  in the commission of offence and therefore has acquitted him from  the charges under Section 302 read with Section 34 of the IPC.   

10. The nuances of Section 34 of the IPC has been explained by  this Court in several decisions, but we will only refer to the  decision in the case of Nadodi Jayaraman and others   vs.   State of    Tamil  Nadu [(1992)  3 SCC  161] and  Saravanan and  Another   vs.    State of Pondicherry [(2004) 13 SCC 238].  In the case of Nadodi  Jayaraman and others (Supra), the Court has observed:-  

“ 9. Section 34 of IPC enacts that when a criminal act is  done by several persons in furtherance of the common intention of  all, each of such persons, is liable for that act in the same  manner as if it were done by him alone.  The section thus lays  down a principle of joint liability in the doing of a criminal  act.  The essence of that liability is found in the existence of  “common intention” animating the accused leading to the doing of  a criminal act in furtherance of such intention.  The section is  intended to meet a case in which it is difficult to distinguish  between the act of individual members of a party and to prove  exactly what part was played by each of them.  It, therefore,  enacts  that  once  it  is  found  that  a  criminal  act  has  been  committed  by  several  persons  in  furtherance  of  the  common  intention of all, each of such persons is liable for the criminal  act as if it were done by him alone.  It is thus an exception to

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the general rule of criminal jurisprudence that it is the primary  responsibility of the person who actually commits a crime and  only that person can be held guilty and punished in accordance  with law for his individual act. 15.  It is thus clear that the criminal act referred to in  Section 34 IPC is the result of the concerted action of more than  one person if the said result was reached in furtherance of the  common intention and each person must be held liable for the  ultimate result as if he had done it himself. ”

11. A perusal of Section 34 of the IPC would clearly indicate  that there must be two ingredients for convicting a person with  the aid of Section 34 of the IPC.  Firstly, there must be a  common intention and secondly, there must be participation by the  accused persons in furtherance of the common intention. If the  common intention is proved, it may not be necessary that the acts  of the several persons charged with commission of an offence  jointly must be the same or identically similar. The acts may be  different  in character,  but must  be arising  out of  the same  common intention in order to attract the provision. The said  principle  is  reiterated  in  a  three-judge  bench  decision  in  Suresh  &  Anr. vs.   State  of  U.P. [(2001)  3  SCC  673]  and  Ramaswami Ayyangar and others vs. State of Tamil Nadu [(1976) 3  SCC 779], wherein the court has stated that 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, for instance, one may only stand guard  to prevent any person coming to the relief of the victim or to

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otherwise facilitate the commission of crime. Such a person also  commits  an  "act"  as  much  as  his  co-participants  actually  committing the planned crime. In the case of an offence involving  physical  violence,  the  person  who  instigates  or  aids  the  commission  of  the  crime  must  be  physically  present  and  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.'

12. Insofar as common intention is concerned, it is a state of  mind of an accused which can be inferred objectively from his  conduct displayed in the course of commission of crime and also  from prior and subsequent attendant circumstances. As observed in  Hari Ram vs. State of U.P. [(2004) 8 SCC 146], the existence of  direct  proof  of  common  intention  is  seldom  available  and,  therefore,  such  intention  can  only  be  inferred  from  the  circumstances appearing from the proved facts of the case and the  proved  circumstances.  Therefore,  in  order  to  bring  home  the  charge of common intention, the prosecution has to establish by  evidence, whether direct or circumstantial, that there was plan  or meeting of mind of all the accused persons to commit the  offence before a person can be vicariously convicted for the act  of the other.  

13.   The facts in the present case in the light of the evidences

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on record are that, A-1 and A-2 are brothers having an old enmity  with the deceased resulting in a constant skirmish over the well  located  in  their  lands.  On  the  said  date  of  incident,  the  animosity culminated to an assault on the deceased by the accused  persons when the deceased was nearing his land.  It has come in  the evidence of PW-6, that A-1 was assaulting the deceased with  stones and A-2 was sitting on the chest of the deceased.  The  aforesaid chain of events gives a clear picture of the whole  incident that had taken place on that fateful day. The evidence  of, PW-6, when seen in entirety and in its proper perspective, we  can conclude that both the accused persons i.e. A-1 and A-2 had a  common intention to assault and kill the deceased person with A-2  as  a participant  in the  crime with  the intention  of lending  weight  to  the  commission  of  an  offence  pursuant  to  a  pre- concerted plan. In our opinion, the High Court was not justified  in coming to the conclusion that merely because A-2 was sitting  on the chest of the deceased person,  the said accused person is  entitled for the benefit of doubt and thereby an acquittal.  In  our opinion, the reasoning and conclusion reached by the High  Court is against the well settled legal principles.   

14. In the result, while allowing the appeal of the appellant- State of Rajasthan (Criminal Appeal No.592 of 2008), we dismiss  the appeal filed by Shri Ram – A-1 (Criminal Appeal No.593 of  2008)  and  confirm  the  judgment  and  order  of  conviction  and

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sentence against the accused persons so passed by the Trial Court  under Section 302 read with Section 34 of the IPC and set aside  the judgment and order passed by the High Court in acquitting  accused A-2.  We further direct that the Accused A-2 Shobha Ram  shall surrender forthwith to serve out the remaining period of  sentence.  The Trial Court is directed to send the compliance  report to this Court within one month’s time from the date of  receipt of a copy of this judgment.  Registry shall send back the  lower court records with a copy of this judgment to the Trial  Court forthwith for information and necessary action.  

Ordered accordingly.  

........................J. (H.L. DATTU)

........................J. (RANJAN GOGOI)

NEW DELHI; JANUARY 16, 2013.