Smt. Mona vs State Of U.P.
2017 Latest Caselaw 5373 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR 
 
Reserved
 
Court No. - 47
 

 
Case :- JAIL APPEAL No. - 4786 of 2010
 

 
Appellant :- Smt. Mona
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Mumtaz Ali,Shad Khan
 
Counsel for Respondent :- A.G.A.
 
and 
 
Case :- JAIL APPEAL No. - 4787 of 2010
 

 
Appellant :- Dhuri
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Mumtaz,Noor Mohammad
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon'ble Chandra Dhari Singh,J)

1. Since both the appeals arise out of a common judgment/order dated 17.05.2010 passed by learned Sessions Judge, Bulandshahar in Session Trial No.10 of 2008, therefore, both the appeals are being decided by this common judgment.

2. Heard Mr. Noor Mohammad learned counsel for the appellants, Mr. Nagendra Bahadur Singh learned A.G.A. for the State and perused the record.

3. Both appeals have been filed against the judgment and order dated 17.05.2010, passed by the learned court of Sessions Judge, Bulandshahar in Session Trial No.10 of 2008, whereby appellants had been convicted for offence punishable under Sections 307/34, 302/34 and 452 I.P.C. They were acquitted for offence punishable under Section 504 I.P.C. as not proved. Each of convicts Dhurri and Smt. Mona were sentenced for life imprisonment and fine of Rs.1000/- and in case of default in the payment of fine, three months rigorous imprisonment under Section 302 I.P.C., seven years rigorous imprisonment and fine of Rs.1000/- and in case of default in the payment of fine, three months rigorous imprisonment under Section 307 I.P.C.; three years rigorous imprisonment and fine of Rs.5,00/- and in case of default in payment of fine, one month rigorous imprisonment under Section 452 I.P.C. The convicts were acquitted for the charges under Section 504 I.P.C. All the sentences shall run concurrently.

4. Brief facts of the case.

(I) According to the prosecution story, on 12.09.2007 the informant Hetram lodged the F.I.R. at Police Station Ramghat, District Bulandshahar at 10:00 a.m. In the F.I.R., it was stated that due to prior enmity, on the same day at 10:00 a.m., while his son Rajeev was sitting beside bed and brother Mukesh was lying on its, appellants Dhurri his wife Mona and another accused Om Prakash carrying kundda (axes) arrived at the place of occurrence, they gave blows with the axes on Rajeev and Mukesh; Rajeev received serious injuries on left ear and Mukesh on the right parietal region. On the calls for help, the informant with Ramsevak and Mukesh son of Hulasi arrived at the place of incident, the accused fled away while abusing them. On the basis of Tehrir, a Case as Crime No.216 of 2007, under Sections 307, 452, 504, 120-B I.P.C. was registered at Police Station Ramghat at 11:00 a.m. On the same day, the injured persons were taken to the hospital, where Rajeev was declared dead and injured Mukesh was taken to J.N. Medical College, A.M.U., Aligarh. After examination of the injuries of Mukesh, the Doctor found sharp cut wound with active bleeding 6 cm x 2 cm x 1 cm, horizentally extending from one end of right eye to the other end cutting through the eye ball.

(II) The police prepared inquest report along with other necessary documents and sent the dead body of Rajeev for post mortem examination. The post-mortem examination was conducted on 30.09.2007 at 04:20 p.m. As per the post-mortem report these injuries were found.

(i) Lacerated wound on left side of face starting near forehead and outer wall of left orbit and extending upto behind middle of pinna of left ear of the size 6 cm x 1/2 cm x brain deep.

(ii) Multiple abrasions on top and back of left shoulder in the area of 8 x 7 cm.

(iii) Abrasion 4 cm x 3 cm on the front of left knee.

III. The Investigating Officer inspected the spot, prepared the site plan, recorded the statements of the eye witnesses, collected the medical examination report and post-mortem report. After collecting the sufficient material and completing the investigation, charge sheet was filed against all the accused namely Dhurri, Mona and Om Prakash for offence punishable under Sections 302/34, 307/34, 452/34, 326, 120B I.P.C. Another charge-sheet for offence under Sections 326, 302, 307/32, 452, 504, 120-B I.P.C. read with Section 3(2)(V) of SC/ST Act was filed against accused Ram Singh. Accused Teny was not charge-sheeted.

IV. The Trial Court framed charges against accused Dhurri and Mona for offences punishable under Sections 307/34, 302/34, 452/34 and 504 I.P.C. Similarly, on the charges under Sections 302, 307, 120-B I.P.C. and Sections 3(2)(V) SC/ST Act were framed against accused Ram Singh. All accused persons pleaded not guilty and claimed trial.

V. The prosecution in order to prove its case examined informant Hetram as PW-1, injured eye witness Mukesh as PW-2, Dr. Sunil Kumar Sharma as PW-3, Dr. Naseem as PW-4, H.C.P. Sevaram as PW-5, S.I. Ram Prasad Sharma as PW-6, S.I. Karan Singh Chauhan as PW-7 and Circle Officer Brijesh Kumar Srivastava as PW-8. Site plan Ex.Ka-6, memo of blood stained soil and simple soil Ex.Ka-7, memo of recovery of 2 axes (Kunddas) Ex.Ka-9 were prepared by the police.

VI. The accused persons had given statements under Section 313 Cr.P.C. They have denied the prosecution story and their involvement in the case. They have stated in the statement that they had falsely been implicated in the present case due to enmity. Accused Mona further stated in the statement under Section 313 Cr.P.C. that the informant's son Genda Lal and his collateral committed rape on her on 03.07.2007, her husband lodged the report about it at the police station. She further stated that police did not register a case of rape and they registered only the case of molestation.

VII. The Session Court entered a finding that appellants had the common intention of killing the deceased Rajeev, when they hit on his head with a weighted Kundda (axe), due to which he suffered serious head injuries and died in the hospital. They were convicted under Sections 302/34, 307/34 and 452 I.P.C. The accused Ram Singh was fount not guilty of the charges under Sections 302, 307, 120-B I.P.C. and Sections 3(2)V of SC/ST Act and therefore, he was acquitted from all charges levelled against him.

5. Learned counsel Mr. Noor Mohammad appearing for the appellants has submitted that the accused persons have no intention to kill the deceased as they have given only single blow on his body. He further stated that the injured witness Mukesh has also not assigned any role. It is further contended on behalf of the appellants that evidence, if properly appreciated would lead to only one inference, that the appellants did not have any intention to commit murder. There was only a single blow, the same happened to be on the head, it was without any premeditation. Thus, the case would come under Exception of Section 300 of the I.P.C.

6. On the other side, learned A.G.A. appeared on behalf of State vehemently opposed the submissions made by the counsel of the appellants. The submissions made by the counsel for the State is that this is the clear cut case of under Section 302 I.P.C. on the only ground that there was a mere single blow, the offence cannot be roped in under Exception 4. He further submitted that all accused persons came on the spot with deadly weapon and gave blows on the vital part of the body of the deceased with motive to kill them. The fatal blow was on a vital organ i.e. head, with great force, resulting in serious injury to the head, the injury is sufficient in the ordinary course of nature to cause death and, thus both intention and knowledge are decipherable from the conduct of the accused-appellants and, hence, the conviction under Section 302/34 is to be upheld.

7. Informant Hetram PW-1 and injured eye witness Mukesh PW-2 are the witnesses of fact. PW-1 deposed on oath and stated in the deposition that about 12-13 days before the incident, Ram Singh, Om Prakash, Dhurri and Munna were taking liquor in the house, it was about 8-9 p.m., after finishing the drink, the bottle of the wine was thrown in a place of the informant and therefore, the quarrel between the informant and accused persons i.e. Dhurri, Om Prakash and Ram Singh was started. It had further been submitted that a false report was lodged against informant's son Genda Lal and Om Prakash. In this case Genda Lal and Om Prakash were bailed out. The informant further submitted in the deposition that at the time of incident at 10:00 a.m. informant's brother Mukesh and deceased Rajeev were at home, Om Prakash, Munna and Dhurri armed with axes came to his house and all the three gave blows to Mukesh and Rajeev with their respective weapons. Due to that blows, his brother Mukesh and son Rajeev were injured. It was further stated that Ram Singh had also threatened a day before the accident as "you are defaming us see what will happen to you". In the cross-examination he revealed that on the day of incident he had not gone to work and he was at his home. When he reached at the place of incident, he saw that the injured were lying unconscious. They were lying on the floor. PW-1 denies that he was making any false statement against the accused persons.

8. PW-2 Mukesh was an injured witness, he received blow on his right eye which was damaged for ever. About the motive, he said that 12-13 days before the incident Ram Singh, Om Prakash, Mona and Dhurri were taking liquor and thrown the bottle of wine. The bottle did not hit anybody but there was a quarrel over it, where they had lodged a false report against Om Prakash and Genda Lal who were bailed out. The witness further stated that on 12.09.2007 at about 10:00 a.m., Rajeev Kumar and he were at the room, he was lying where Rajeev was sitting, the accused Dhurri, Mona and Om Prakash carrying Kundda (axe) arrived at the place of occurrence, all the three started assaulting Rajeev and injured witness and due to that they caused injuries on vital part of the body. He further submitted in his statement that Ram Singh had threatened a day before as to what would happen to them, the incident took place the very next day; both Rajeev and he were taken to Aligarh Medical College, where Rajeev declared dead. In the cross-examination he says that day he had not gone out for work and he was lying on the cot. He was wounded with an axe, the blow was very forceful, both of them i.e. deceased and PW-2 were assaulted same time.

9. With regard to motive the informant has mentioned in the F.I.R. that Dhurri had lodged a false case against informant's son Genda Lal and Om Prakash son of Kundan and out of this enmity, the offence was committed on 12.09.2007 at 10:00 a.m. In the statements, both the witnesses said that about 12-13 days before the incident accused Dhurri, Mona, Om Prakashand and Ram Singh took liquor in the night and thrown empty bottle which would be hit anyone. An objection was raised, where on a false report was lodged by Dhurri against Genda Lal and Om Prakash which is also in evidence that the accused in that case had granted bail. After perusing of the statements of both the witnesses and F.I.R., it is well established that there were motive behind the incident and therefore, motive has been established by the prosecution. Due to the motive of killing the deceased, all the accused persons came with deadly weapons and gave very forceful blow on head i.e. vital part of the body.

10. Dr. Suneet Kumar Sharma PW-3 conducted the post-mortem on the dead body of Rajeev on 13.09.2007 at 4:20 p.m. The Doctor found the following ante-mortem injuries on the dead body of Rajeev :-

1. A lacerated wound 6 cm x 8 x brain deep on the left side face extending from left side temple to neck across the ear.

2. Multiple abrasions on the left side of shoulder in an area of 8 cm. x 7 cm.

3. An abrasions 4 cm. X 3 cm. On left knee.

On exploration frontal and temporal bones of head were found fractured and brain lacerated and bolld had coagulated under the brain. The Doctor held that the death was caused by coma as a result of ante mortem injuries. The Doctor further says that he prepared post mortem report Ex.Ka-2 in his hand writing and signatures. In the cross-examination the Doctor says that injury no.1 was caused by some hard blunt object and injuries No.2 and 3 by friction against some rough object.

11. Dr. Naseem Alam deposed that he medically examined Mukesh at 2 p.m. on 12.09.2007 and found the following injuries on his person :-

1. A cut wound 6 cm. x 2 cm. x 1 cm. with blood oozing located across the right eye which was cut. Swelling on orbit of right eye and there was possibility of fracture of bone under it. It was grievous and was caused by some sharp edged weapon. The Doctor asserts that the injury could have been caused by a Kulahadi. They were also grievous and inflicted on vital parts and could prove fatel. The injury report is proved as Ex.Ka-3. In the cross-examination the Doctor admits the defence suggestion that both the injuries could be caused by one stroke of axe.

12. S.I. Ram Prasad Sharma PW-6 deposed that he took up investigation on 12.09.2007; he copied out the chik report and the G.D. in the case diary, recorded the statements of Hetram and thereafter accompanied informant to the place of occurrence; he prepared site plan Ex.Ka-6 in his hand and signature. He collected sample soil and blood stained soil and prepared memo in that behalf Ex.Ka-7; when the information of death of Rajeev was received, it was recorded in the G.D. and the offence punishable under Section 302 I.P.C. was added; the written information regarding the death of the deceased was marked as Ex.Ka-8. He further deposed in his statement that on 14.08.2007 accused Om Prakash was killed in accident with the train and same was recorded in the G.D. The accused Dhurri and Munna were arrested and on their instance two Kunddas (axes) were recovered. The memo of which Ex.Ka-9 was prepared.

13. S.I. Karan Singh Chauhan PW-7 took up the investigation of the case on 22.10.2007 after transfer of PW-6. On oath he said that accused Ram Singh had not been arrested. The charge sheet against accused-appellant Dhurri and Munna for offence punishable under Sections 302, 307, 326, 452/34 and 120-B I.P.C. was filed. He sent sample of soil and blood stained soil and two blood stained axes to Forensic Laboratory.

14. The F.I.R., medical reports, statements of the Doctors corroborated with the statements of the eye witness and informant. The informant saw the accused persons when they were on the spot with the weapons and after seeing him they fled away from the place of incident. It is right that the informant had not seen the crime as he reached the spot just after completion of crime but he saw all the accused persons on the spot with their respective weapons.

15. The informant deposed that out of enmity accused persons armed with Kunddas (axes) assaulted Rajeev and Mukesh and caused the grievous injuries. Rajeev succumbed to the injury but Mukesh survived it, however, he lost his one eye. The F.I.R. of the incident was lodged very promptly within one hour. The accused persons were named in the F.I.R. and weapons had also been assigned. The testimony of eye witnesses is corroborated with the F.I.R. and medical evidence. Recovery of the weapons also lends support. The testimony of eye witness Mukesh has found reliable. The incident took place in broad light. Since all the accused persons belong from the same village, therefore, their identity cannot be doubted.

16. Therefore, on fore going discussions, the trial court has rightly after appreciation of all evidences on the record convicted the accused persons for offence punishable under Sections 302/34, 307/34, 452 I.P.C. Each of convicts Dhurri and Smt. Mona were sentenced imprisonment for life and fine of Rs.1000/- and in case of default in payment of fine three months rigorous imprisonment under Section 302 I.P.C., seven years rigorous imprisonment and fine of Rs.1000/- and in case of default in payment of fine three months rigorous imprisonment under Section 307 I.P.C., three years rigorous imprisonment and fine of Rs.5,000/- and in case of default in payment of fine one month rigorous imprisonment under Section 452 I.P.C.

17. We have considered the rival submissions made by learned counsel for the parties and perused the record.

18. The accused aspect to be analyzed in this case is whether the conduct of the appellants to inflict the forceful blow on the vital part of body was intentional and with knowledge or with knowledge only. The medical report given by Doctor who conducted the post-mortem of the dead body of deceased Rajeev shows that injury causes by the weapons and by the appellants was sufficient in the ordinary course of nature to cause death. Hence, we have to analyze the evidence in the light of Section 300 clause 'Thirdly' and examine whether Exception 4 to Section 300 is applicable.

The other aspect also to be analyzed is that whether the all accused to be punished for common intention to kill the deceased, therefore, they come together with deadly weapon as the inflicted on the vital part of the body.

19. Before we proceed to examine the impugned judgments of the courts below and facts of the case, it may be desirable to refer to the settled principles of law which have to be applied in the instant case.

20. Section 300 "Thirdly" reads as follows:

"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -

Thirdly, - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -

Exception 4 to Section 300 of the Code, reads as follows:

Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault."

21. If the case falls under Exception 4, then the further inquiry should be as to whether the case falls under the first part of Section 304 or the second part, which reads as follows:

"304-Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death,

or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to then years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

22. The landmark judgment in Virsa Singh v. State of Punjab (1958) 1 SCR 1495 draws a distinction between "Thirdly" of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved.

i. first, whether bodily injury is present;

ii. second, what is the nature of the injury;

iii. Third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and

iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.

23. In the Lord Goddard in R v. Steane 1947-1 All ER 813 wherein the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question where is, what is the extent and nature of the intent that Section 300 "thirdly" requires, and how is it to be proved?

The learned Chief Justice further says that "if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted".

In the aforesaid judgment, it is further held, "no doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged."

24. In Pulicherla Nagaraju alias Nagaraj Reddy v. State of A.P. (2006) 11 SCC 444 the Hon. Supreme Court has held as under:-

"21. We cannot accept the contention that whenever the death is on account of a single blow, the offence is one under Section 304 and not Section 302. We will briefly refer to the cases relief on by the appellant.

26. It would thus be seen that in all these cases, the accused landing a single blow was only one of the several circumstances which persuaded this Court to hold that the offence did not fall under Section 302 but fell under Section 304 Part I or Part II. The fact that the accused gave only one blow, by itself, would not mitigate the offence to one of culpable homicide not amounting to murder. There are several cases where single blow inflicted by the accused resulting in death have been found to be sufficient for conviction under Section 302. We may refer to a few of them, namely, Virsa Singh v. State of Punjab, Gudar Dusadh v. State of Bihar, Vasanta v. State of Maharashtra, Jai Prakash v. State (Delhi Admn.) and State of Karnataka v. Vedanayaga.

27.In Virsa Singh, this Court held that a culpable homicide is a murder under Section 300 clause Thirdly, if the prosecution should establish four elements - (i) the presence of a bodily injury, (ii) nature of such bodily injury, (iii) intention on the part of the accused to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended; and (iv) the injury was sufficient to cause death in the ordinary course of nature (this part of enquiry being purely objective and inferential, nothing to do with the intention of the offender). Dealing with the question, as to how intention is to be inferred, Vivian Bose, J. succinctly stated : (SCR pp. 1500 and 1503)

"In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted....

The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question."

28.The following legal position regarding single blow injury, was summed up in Jagrup Singh v. The State of Haryana thus : (SCC pp. 619-20, para 6)

"6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.

30. In this case, as noticed above, the appellant was carrying a Barisa, a dangerous weapon. There was previous enmity. There was an earlier incident, about half an hour earlier when the father and brother of the deceased had been attacked by the appellant and his father. The deceased was unarmed. There was no provocation, sudden quarrel or fight. There was no indication of any cause for an apprehension on the part of the appellant that the deceased may attack him. The stabbing was with great force, causing an injury on a vital part of body, sufficient in the ordinary course of nature to cause death. The description of the injury and cause for death given by PW-11, who conducted the post mortem is telling :

"An incised injury 5 cm x 3 cm x 12 cm deep over right supra clavicular fossa above the medial end of right clavicle.. sub-clavian artery is severed.. An incised injury 4cm x 1cm x 2cm deep over the apex of right lung.. deceased would appear to have died due to haemorrhage and shock due to injuries to right sub-clavian artery and upper lobe of right lung."

The intention to cause death or at all events intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death was made out. The circumstances to bring the case under Exception (4) to Section 300 do not exist."

25. In Manubhai Atabhai v. State of Gujarat (2007) 10 SCC 358 the Hon. Supreme Court has held as under:-

"9. Trial court's conclusions are very confusing. For recording conviction under section 304 Part I IPC, the trial court recorded that it was a case of exercise of right of private defence and only one blow was given and there was a counter-case. If it was really a case of exercise of right of private defence, there could not have been any conviction much less under section 304 Part I IPC. Merely because a single blow was given that does not automatically bring in application of section 304 Part I IPC.

10. Trial court did not consider the various aspects highlighted by this Court in cases relating to single blow. The cross-case has really no relevance for determining as to the nature of offence."

26. In the absence of evidence or reasonable explanation, the appellants did not intent to give forceful blow on the head or intent to give blow on the head with degree of force sufficient to cause the death or to indicate that their act was regrettable extent and that they intended otherwise, it would be perverse to conclude that they did not intend to inflict the injury that they did. Once that intention is established, the rest is matter for objective determination from the medical and other evidences about the nature and seriousness of the injury.

27. The counsel appearing for the appellants submitted that no specific role has been assigned to any accused person/appellants that actually who had given blow to the deceased, therefore, the eye witness failed to describe correctly what role had been played by an individual appellant.

28. The appellants were convicted under Sections 307/34, 302/34 and 452 I.P.C. All accused persons came at the place of the incident accident armed with deadly weapon i.e. axe with common intention to kill the deceased. They assaulted deceased Rajeev and injured Mukesh and caused them serious injuries. Rajeev succumbed to the injury but Mukesh survived it. He, however, lost his one eye.

29. Now, in the instant case, we have to analyze the evidence in the light of Section 34 of I.P.C. that whether the accused persons had a common intention to kill the deceased. Section 34 of Indian Penal Code 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.]"

30. In Nand Kishore v. State of M.P. (2011) 12 SCC 120, the Hon'ble Supreme Court held as under:

"20. A bare reading of this section shows that the section could be dissected as follows :

(a) Criminal act is done by several persons;

(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 in 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 the 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 participant in the joint act which is the result of their combined activity.

21. 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.

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

23. 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 statements 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, 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."

31. In Jai Bhagwan and others v. State of Haryana [Air 1999 SC 1083], the Hon'ble Supreme 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 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 common intention is absent, Section 34 cannot be invoked. In every case it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case."

32. Section 34 I.P.C. intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by each of them. Common intention means that each members of the group is aware of the act to be committed. Section 34 I.P.C. can be invoked in those cases where some of the co-accused may be acquitted, it can be proved either by direct evidences or inference that the accused and the others have committed an offence in pursuance of the common intention of the group.

In the instant case, all accused persons came at the place of incident armed with deadly weapon i.e. axe with intention to kill the deceased, therefore, they have inflicted the injury on the vital part of the body and due to that the deceased died. Therefore, non-assignment of individual role in the instant case does not affect the prosecution case.

33. In view of the aforesaid discussion, we are of the considered opinion that the court below has rightly proceeded in the matter and convicted the accused persons with the aid of Section 34 I.P.C.

34. In the light of the principles of law which have been discussed above, we have analyzed the factual position as to whether the appellants had the intention to cause death or, whether they only had the knowledge about the injury which is likely to cause death. We have to also analyze the manner in which the injury is caused and the provocation for the same.

As per the statement of injured witness Mukesh, he clearly sated that the appellants came with the deadly weapon with motive to kill the deceased and therefore, they had given very forceful blow on the head of the deceased and due to that injury he died. The statements of Doctor who had conducted the post-mortem also corroborated with the statement of the injured witness Mukesh. Mukesh had also got serious injuries on his eyes and face and due to that injury his left eye permanently damaged. The prosecution has also proved motive of the murder of the deceased. There was no provocation, sudden quarrel of fight. There was also no indication of any cause for apprehension on the part of the appellants that the deceased may attack them. The blow was with great force, causing an injury on a vital part of the body, sufficient in the ordinary course of nature to cause death. The description of the injury and cause for death given by PW-3 who conducted the post-mortem of the dead body has also supported the case of the prosecution.

35. Therefore, in the instant case, the intention of cause of death or at all events intention of causing injury which is sufficient in the ordinary course of nature to cause death is made out.

36. The court below after appreciating the evidence on record rightly came to the conclusion that the appellants had been responsible for the said offence. The testimony of these witnesses had been subjected to searching cross-examination, but nothing has been brought on record to discredit the statement of injured eye witness.

37. In view of the above, we are of the view that instant case does not present special features warranting interfere with the judgment/order dated 17.05.2010 passed by Sessions Judge, Bulandshahar. Thus, there is no cogent reason to interfere with the impugned judgment and order dated 17.05.2010 passed by the court below. The jail appeals lack merit and are accordingly dismissed.

38. The Registry is directed to send a certified copy of the judgment with all original records to the concerned court below for compliance.

Order Date :- 12.10.2017

Jitendra

(Chandra Dhari Singh,J.)  (Shri Narayan Shukla, J.)