Mahavir Singh vs State Of U.P. & Others
2018 Latest Caselaw 1782 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 03.07.2018
 
Delivered on :31.07.2018
 
Court No. - 34
 

 
Case :- CRIMINAL APPEAL No. - 1462 of 1982
 

 
Appellant :- Mahavir Singh & Others
 
Respondent :- State Of U.P. & Others
 
Counsel for Appellant :- Devendra Swaroop,J.S. Sengar,Prashant Vyas,Sanjay Srivastava
 
Counsel for Respondent :- D.G.A,A.G.A.,Sri A.B.L. Gaur
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Mrs. Vijay Lakshmi, J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri G. S. Chaturvedi, learned Senior Counsel assisted by Sri Prashant Vyas, learned counsel for appellants and Sri Rishi Chhadha, learned Additional Government Advocate for State.

2. This criminal appeal has been preferred against judgment and order dated 31.5.1982 passed by learned IVth Additional Sessions Judge, Bulandshahr in Sessions Trial No.486 of 1981 under Section 302 and 307 read with 34 IPC, Police Station-Aurangabad, District-Bulandshahr, arising out of Case Crime No.305 of 1981 whereby Appellant no.2 has been convicted u/s 302 and 307/34 IPC and sentenced for life u/s 302 IPC and 7 years Rigorous Imprisonment u/s 307/34 IPC. Remaining appellants 1, 3 and 4 are convicted u/s 302/34 and 307/34 IPC and sentenced to imprisonment for life on the first count and 7 years Rigorous Imprisonment on the second count.

3. Facts giving rise to present appeal, as per FIR version, are that, in morning time on 20.10.1981, one Mahavir Singh was paving way in front of his house by getting filled it with soil, due to which public path was going to be closed. Informant PW-1, Rajmal Singh along with Pradhan of village namely Jagan Singh, and some others, went to Mahavir Singh and raised objection. Thereafter on same day i.e. 20.10.1981 at 5 pm, Mahavir Singh brought a single barrel gun of Rishal Singh and also asked accused Neerpal Singh, Nem Singh and Rambhool Singh to bring their respective weapons so as to make Informant as well as others to pay. All these three accused brought single barrel guns and country made pistol. Mahavir instantly opened fire. Due to fear, Informant ran towards house of his brother namely, Hansraj. On hearing noise as well as sound of gunshot, co-villagers Satyapal Singh, Rajpal Singh, Hoshiyar Singh, Kripal Singh and Ranvir Singh came over there. Despite the fact that aforesaid co-villagers had arrived there, accused persons opened 5-6 fire shots with an intention to kill, which hit PW-1, Informant on his head, and on eyebrow and chest of PW-2, Manvir Singh. Informant's brother Hansraj asked from inside house as to who had opened fire at his brother and peeped out. At the same time accused Neerpal Singh opened fire at him hitting on his head and he fell backwards. Thereafter, villagers also reached there. Informant put his brother Hansraj on a cot and while going to Police Station along with injured Manvir Singh and Rajmal Singh (Informant) on tractor-trolley of Pradhan namely, Jagan Singh accompanied by Parmal Singh, Jihan Singh, Jagpal Singh and Brijendra Singh, Hansraj died near Pavsara Mod (Turn). FIR was lodged with police on the same day i.e. 20.10.1981 at 19.50 pm.

4. After registration of F.I.R. usual investigation proceeded and statements of witnesses were recorded. Recovery memos of two empty cartridges, ordinary soil, blood stained soil were prepared. Inquest proceedings were initiated and after formal documentation, body of deceased was transmitted in sealed condition to concerned Chief Medical Officer for autopsy, which was conducted. Ultimately investigation culminated into filing of chargesheets u/s 173 (2) Cr. P. C. in the Court of Chief Judicial Magistrate, Bulandshahr on 5.12.1981.

5. Case was committed to Court of Sessions by Chief Judicial Magistrate, Bulandshahr on 19.12.1981. Learned Trial Court (IVth Additional Sessions Judge, Bulandshahr) after hearing prosecution and defence, as well as considering material available on record, framed charges against accused persons for committing offences under Section 302, 302/34 and 307/34 IPC vide order dated 7.1.1982. Accused-appellants denied charges and claimed to be tried on merits.

6. To substantiate charges levelled against accused-appellants, prosecution examined PW-1 Rajmal Singh (Informant), PW-2 Manvir Singh, PW-3 Hoshiyar Singh, PW-4 Hermehar Singh as wtinesses of fact; and PW 5 Dr. R. K. Lal, PW 6 Dr. Ramgopal Bohra , PW 7 Dr. M. M. Sharma (Radiologist), PW 8 S. I. Prem Narain Dikshit and PW 9 Om Prakash Mani Tripathi (Fire Arm and Ballistic Expert) PW-1 and PW-2 are injured witnesses whereas PW-3 is eye witness. PW 8 is Investigating Officer. Autopsy on dead body of Hansraj was done by PW 5 Dr. P. K. Lal. PW-6 is Medical Officer, who examined injured namely PW-1 Rajmal and PW-2 Manvir Singh.

7. PW 5 Dr. R. K. Lal had conducted post mortem examination on the person of deceased Hansraj on 21.10.1981 at 4.15 pm and noted following ante mortem injuries :-

(i) 2 gun shot wounds of entry on right side forehead, 1 ½" apart, 1" above the right eyebrow

(ii) 1 gun shot wound of entry on right cheek 1 ½" above the right angle of mouth

(iii) 2 gun shot wounds of entry 1 ½" apart just below right ear lobule.

(iv) 7 gun shot wounds of entry in an area 4" x 3" on the right side base of neck.

(v)1 gun shot wound on the middle of right of clavicle.

(vi) 3 gun shot wounds about 1 ½"apart on front and outer side of right shoulder.

(vii) 1 gun shot wound on outer side of right upper arm 3" above the elbow.

(viii) 1 gun shot wound 1" above the right nipple of chest.

(ix) 1 gun shot wound 3" below the right nipple.

(x) 1 gun shot wound 3" below and medial to left nipple of front of chest.

8. The doctor opined that size of gunshot wounds was 0.2" x 0.2" and there was no blackening, tatooing and charing around the wounds. On internal examination, frontal bone of right side was fractured; membranes in frontal region were lacerated, brain in the frontal region was also lacerated and one pellet was taken out from frontal lobe; pleura-ruptured on right side, right ventricle punctured and one pellet was taken out from right ventricle; about 1 litre blood found in thoracic cavity; small intestine contained semi digested food and gases; large intestine contained gases and faeces. PW-5 proved execution of post mortem examination report which has been marked as Ext. Ka 7. Cause of death has been assigned to injuries on vital organs viz. brain, chest and right lung, due to ante mortem injuries. As per doctor, duration of death was one day old.

9. PW-6 Dr. Ramgopal Bohra had examined Informant i.e. PW-1 Rajmal Singh (injured) on 20.10.1981 at 7.45 P.M. and found following injuries on his person :

"Gun shot injuries 35 in number, ¼ cm in diameter within area of 23 cm x 13 cm size from right eyebrow to occiput and right ear to midline of head. Pellets palpable beneath skin; advised X ray for location of pellets; no blackening or tattooing etc., fresh bleeding present."

10. In the opinion of doctor i.e. PW-6, injury was simple and caused by gun shot; duration was fresh in nature. He has proved medical examination report as Ext Ka 8.

11. PW-6 has also examined PW-2 Manveer Singh, injured, on 20.10.1981 at 8.05 P. M. and found following injuries on his person :

(i) Gun shot injuries ¼ cm in diameter on left eyebrow at medial end with contusion on upper and lower eye lid, measures 4 cm x 2 ½ cm, no blackening or tattooing etc.

(ii) Gun shot injury ¼ cm in diameter on left shoulder.

(iii) Gun shot wound ¼ cm in size (diameter) 3 cm below left ear

(iv) Gun shot wound ¼ cm in diameter above left clavicle, 3 cm lateral to left sternoclavicular joint.

(v) Gun shot wound ¼ cm diameter on right sternoclavicular joint.

(vi) Gun shot wound ¼ cm diameter above right clavicle, at middle.

(vii) Gun shot wound ¼ cm diameter, 2 cm lateral (right) to xiphisternum

(viii) Gun shot wound ¼ cm diameter, 3 cm below left nipple

(ix) Gun shot ¼ cm diameter, 4 cm lateral to left nipple on chest

(x) Gun shot wound ¼ cm diameter on anterior axillary line.

(xi) Gun shot ¼ cm diameter on right thigh, 7 cm below anterior angle iliac crest with pellets palpable".

12. PW-6 had advised X-ray of left eye and thigh of PW-2 Manvir Singh. He opined that all injuries were simple in nature except injury no.(i) regarding which opinion could be given after perusal of X-ray report and injuries were caused by gunshot and duration was fresh. He has proved injured report Ext Ka 9.

13. PW-7 Dr. M. M. Sharma, Radiologist had taken X-ray of skull of injured PW-1 Rajmal on 21.10.1981 and proved X-ray plates. Ext Ka 10 i.e. X-Ray report reveals multiple small rounded radio opaque shadows of metallic density, resembling lead pellets.

14. X-ray of skull and right thigh of another injured PW-2, Manveer was taken on 22.10.1981. X-ray plates are Ext 2 and Ext 3 and his X-ray report is Ext ka 11 which shows one lead shadow in thigh and two lead shadows in skull of metallic density.

15. During cross-examination, PW-7 has clarified that X-ray of skull of Rajmal were of different sizes which affirms that pellets were fired upon him from two different cartridges causing injuries.

16. PW-8 S.I., Prem Narain Dikshit is Investigating Officer, who has recorded statements of witnesses, proved inquest report Ext ka 12, challan of corpus Ext Ka 13, prepared site plan (Ext Ka19, prepared recovery memos of plain as well as blood stained soil, blood stained clothes, empty cartridges, gun, bandolier containing 5 live cartridges. He has proved the execution of the documents prepared by him during course of investigation and submission of charge sheet.

17. PW-9 Om Prakash Mani Tripathi, Ballistic Expert has proved ballistic report Ext Ka 21 and microfilm negative Ext 11 and enlarged prints Ext 112.

18. All the accused persons denied prosecution story in their statements u/s 313 Cr. P. C. and stated that they have been falsely implicated due to previous enmity.

19. After hearing counsel for parties and perusal of entire oral as well as documentary evidences available on record, learned Sessions court has convicted and sentenced accused-appellants for offences u/s 302, 302/34 and 307/34 IPC as discussed above.

20. Incident had taken place at around 5 pm on 20.10.1981 and FIR was lodged at 7.05 pm on the same day. Police station from the village is at a distance of about 6 kms. Informant travelled the distance by tractor-trolley. FIR contained substantial detailed account of occurrence. Informant himself was injured in the incident and injuries by Fire Arm are corroborated by medical report. Informant PW-1, Rajmal Singh's medical examination at Primary Health Centre, Lakhnauti was conducted at 7.45 pm on 20.10.1981. He was accompanied by Harendra Kumar, Constable. Dr. R. G. Bohra, who conducted medical examination of PW-1 (Informant), has proved his report as PW-6. Inquest report was completed at 9.30 pm and accompanying papers along with dead body were received at mortuary at 12.45 pm and body at 11 am on the next day i.e. 21.10.1981.

21. Topography of place of occurrence and other details of occurrence have been proved by three eye witnesses, PW 1, PW 2 and PW 3, wherein PW 1 and PW 2 are also victims having sustained injuries in the incident. Trial Court has found their evidence corroborated by FIR version, medical examination report, autopsy report etc and, therefore, held the offences, u/s 302 and 307/34 IPC, proved in material particulars against accused-appellant Neerpal Singh and in respect of other accused, offences u/s 302/34, 307/34 IPC have been held proved.

22. Sri G. S. Chaturvedi, learned Senior Counsel appearing for all the appellants fairly stated that findings of Court below in respect of conviction and sentence of Appellant-2 u/s 302 and 307/34 IPC are difficult to assail. In respect of appellants 1, 3 and 4, their conviction and sentence u/s 307/34 IPC also he found difficult to assail. He, therefore, has argued the matter on the issue, whether conviction of Appellants-1, 3 and 4 u/s 302/34 IPC was permissible on the facts of the case and evidence available on record. He argued that conviction of appellants 1, 3 and 4 u/s 302/34 IPC is clearly illegal and they have wrongly been convicted and sentenced.

23. Sri Chaturvedi urged that FIR version is that Mahavir Singh, Appellant-1 was paving way in front of his house, by filling with soil, and thereby attempting to obstruct/close public path. This would have created obstruction in the passage of public and also for carrying buggy (bullock cart). It was objected by Informant/PW-1, Rajmal Singh, accompanied by Jagan Singh, Pradhan of village and some other persons. They told him not to do so. This incident had happened in the morning of 20.10.1981. In the evening, around 5.00 PM, accused-appellant 1, Mahaveer Singh, took single barrel gun of Rishal Singh and called Neerpal Singh (appellant 2), Nem Singh (appellant 4) and Rambhool Singh (appellant 3) to come with their arms immediately so that Informant and others, who objected in the morning must pay for their objections. It is nobody's case that Hansraj accompanied informant and others in the morning to raise objection to the act of Mahaveer Singh. All three accused-appellants came along with single barrel guns and country-made pistol. Mahaveer Singh, appellant-1 immediately fired whereupon Rajmal Singh, Informant/PW 1, got frightened and ran towards house of his brother, Hansraj. Hearing noise and fire shot, other persons of village namely Satyapal Singh, Rajpal Singh, Hoshiyar Singh, Kripal Singh and Ranvir Singh came to place of incident whereupon aforesaid accused-appellants opened 5-6 rounds of fire. Informant, PW 1 sustained gun shot injuries at his head and Manveer Singh (PW 2) sustained injuries on eyebrow and chest. Hansraj Singh, brother of Informant, was inside the boundary of his house and therefrom enquired who had fired. Thereafter he peeped outside and enquired, who has shot at his brother, whereupon appellant 2 Neerpal Singh with an intention to kill Hansraj opened fire at him hitting on his head. Hansraj immediately fell backward and while on way to hospital, died near Pasvara Turn. He further pointed out that PW 1 (Informant) has made the same statement in his oral deposition with a minor difference that Hansraj who was inside the house, came outside, climbed east-northern side wall and asked who had fired. He looked upon Informant and further asked who had fired at his brother. Mahaveer Singh, accused-appellant replied that he (Mahaveer) had fired at his brother and in the meantime Neerpal opened fire aiming Hansraj. The statements of PW 2 and PW 3 are also similar to that of PW 1. In view of above evidence available on record, learned Senior Counsel contended that Hansraj figured at the spot of occurrence, accidentally, since he was present in the house, intercepted and enquired about firing and thereupon appellant 2 fired at him and he died. There was no making of mind, no common intention on the part of accused-appellants to kill Hansraj. Therefore, conviction of appellants 1, 3 and 4 u/s 302/34 IPC, since they were accompanying appellant 2 Neerpal Singh, who fired upon deceased Hansraj, is clearly illegal. It cannot be said to be a case of common intention formed by accused-appellants to make preparation to kill Hansraj Singh. He contended that in order to attract Section 34 IPC it has to be seen that a criminal act is done in furtherance of common intention of all persons which is not the case in hand so far as killing of Hansraj Singh is concerned. Therefore, he contended that Section 34 IPC is not attracted and hence conviction of Appellants-1, 3 and 4 under Section 302 read with Section 34 IPC is illegal and liable to be set aside.

24. The issue, therefore, which has to be examined by this Court is, "whether conviction of appellants 1, 3 and 4 under Section 302 read with Section 34 IPC is justified and can it be said that they are guilty of offence u/s 302/34 and murder of Hansraj can be said to be a part of common intention on the part of appellants 1, 3 and 4, in the above facts and circumstances of case". In other words, "whether Section 34 read with Section 302 IPC is attracted in the case in hand in respect of appellants 1, 3, and 4 is the crucial issue which has to be examined by us".

25. We, therefore, first proceed to examine Section 34 IPC, which reads as under :-

"Section 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."

26. As initially enacted, the words "in furtherance of the common intention of all" were not part of Section 34 but came to be introduced by Section 1 of Act XXVII of 1870. The reason for inserting such amendment was the observations made by Sir Barnes Peacock, CJ, in Queen Vs. Gora Chand, (1866) 5 Suth WR 45 (FB), holding that mere presence of a person at the scene of crime would not be sufficient to hold him liable to be implicated under section 34 IPC as it stood then, unless such presence was an act in furtherance of a common design.

27. Ordinary rule of criminal liability is that a person who actually commits an offence has the primary responsibility to suffer punishment for the same. Section 34 IPC, however, brings within the ambit of penal liability even those person(s) who have not actually committed crime but there existed a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Thus to attract Section 34, which infact enumerates one of the principle of constructive liability, two conditions must be satisfied : (i) There must be common intention to commit a criminal act; and (ii) There must be participation by all the persons in doing such act in furtherance of that intention.

28. In Krishna Govind Patil Vs. State of Maharashtra, AIR 1963 SC 1413, Court construed Section 34 IPC and held that common intention within the meaning of section implied a prearranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of commission of the offence; but crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under Section 34 read with specific provision under which the person is charged, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence.

29. In Gurdatta Mal Vs. State of Punjab, AIR 1965 SC 257 =(1965) 1 Cri LJ 242 (SC), it was held that criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of section 34 IPC.

30. Joel Prentiss Bishop in "Commentaries on the Criminal Law", an American Jurist said that every person is responsible criminally for what wrong flows directly from his corrupt intentions; but no man, intending wrong, is responsible for an independent act of wrong committed by another. If one person sets in motion the physical power of another person the former is criminally guilty for its results. If he contemplated the result, he is answerable, though it is produced in a manner he does not contemplate. If he does not contemplate the result in kind, yet if it was the ordinary effect of the cause, he is responsible. If he awoke into action an indiscriminate power he is responsible. If he gave directions vaguely and incautiously, and the person receiving them acted according to what might be presumed to have been his understanding of them, he is responsible. But, if the wrong done was a fresh and independent wrong, springing wholly from the mind of the doer, the other is not criminal therein, merely because, when it was done, he was intending to be a partaker with the doer in a different wrong.

31. A similar observation was also made in Shankarlal Kachrabhai & Ors. Vs. State of Gujarat, AIR 1965 SC 1260 by referring to a decision of Judicial Committee in Mahbub Shah Vs. King-Emperor, L.R. 72 I.A. 148. Court said that the criminal act mentioned, 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, each person is liable for the result as if he had done it himself. Court also explained the meaning of word "in furtherance of the common intention" and said as under :

"The Dictionary meaning of the word "furtherance" is "advancement or promotion". If four persons have a common intention to kill A, they will have to many acts in promotion or prosecution of that design in order to fulfill it. Some illustrations will clarify the point. Four persons intend to kill A, who is expected to be found in a house. All of them participate in different ways. One of them attempts to enter the house, but is stopped by the sentry and he shoots the sentry. Though the common intention was to kill A, the shooting of the sentry is in furtherance of the said common intention. So Section 34 applies. Take another illustration. If one of the said accused enters the room where the intended victim usually sleeps, but somebody other than the intended victim is sleeping in the room, and on a mistaken impression he shoots him. The shooting of the wrong man is in furtherance of the common intention and so, Section 34 applies. Take a third variation of the illustration. The intended victim has a twin brother who exactly resembles him and the accused who is entrusted with the part of shooting the intended victim, on a mistaken impression, shoots the twin brother. The shooting of the twin brother is also in furtherance of the common intention. Here also Section 34 applies. If that much is conceded we do not see any justification why the killing of another under a mistaken impression of identity is not in furtherance of the common intention to kill the intended victim. When the accused were shooting at Rama believing him to be Madha, they were certainly doing a criminal act in furtherance of the common intention which was to kill Madha. They killed Rama because they believed that they were shooting at Madha. Mr. Chari argues, how can a mistake committed by one of the accused be in furtherance of a common intention ? For it is said that to commit a mistake was not a part of the common intention of the accused. But the question is not, as we have pointed out, whether the committing of a mistake was a part of the common intention, but whether it was done in furtherance of the common intention. If the common intention was to kill A and if one of the accused kills B to wreak out his private vengeance, it cannot possibly be in furtherance of the common intention for which others can be constructively made liable. But, on the other hand, if he kills B bona fide believing that he is A, we do not see any incongruity in holding that the killing of B is in furtherance of the common intention."

32. In this decision, Court also referred to the Judicial Committee decision in Barendra Kumar Ghosh Vs. Emperor (1924) I.L.R. 52 Cal. 197 explaining the expression "criminal act" as under :

"A criminal act means that united criminal behavior which results in something for which an individual would be punishable if it were all done by himself alone that is, in a criminal offence."

33. In Hethubha alias Jithuba Madhuba and Ors. Vs. State of Gujarat, AIR 1970 SC 1266, Court observed that dominant feature of Section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. Prior concert and pre-arranged plan is the foundation of common intention to establish liability and guilt.

34. In Jai Bhagwan and others Vs. State of Haryana, AIR 1999 SC 1083, Court said that 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.

35. In Harjit Singh & Anr. Vs. State of Punjab, (2002) 6 SCC 739, the Court said that "common intention" is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute "common intention" to one or others involved in the crime. The subjective element in "common intention" therefore should be proved by objective test.

36. In order to attract Section 34 IPC, the Court should be able to draw an inference that result reached was concerted action of the person said to have been liable.

37. The "common object" is different from "common intention". However, we do not propose to deal into this distinction for the reason that here Section 149 is not in issue and therefore this Court is confined only to examine whether Section 34 IPC has rightly been applied or not and there was evidence of common intention or not. However, suffice it to mention that dealing with distinction in "common object" and "common intention", in Dani Singh & Ors. Vs. State of Bihar, 2004 (13) SCC 203, Court explained the term "common intention" and said that "common intention" to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert.

38. In Surendra Chauhan vs. State of Madhya Pradesh, AIR 2000 SC 1436 Court held that common intention could be developed on the spur of moment. To attract Section 34 IPC the essence of simultaneous consensus of the minds of persons participating in criminal act and such consensus can be developed on the spot. It is not mandatory for prosecution to bring direct evidence of common intention on record and this depends on the facts and circumstances of the case. The intention could develop even during the course of occurrence.

39. In Nand Kishore vs. State of Madhya Pradesh, 2011(12) SCC 120 Court observed 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 criminal act would be the requirement. Every individual member of entire group charged with aid of Section 34 must, therefore, be a 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.

40. In Shyamal Ghosh vs. State of West Bengal, 2012(7) SCC 646 Court referred to following observations from Privy Council decision in Barendra Kumar Ghosh vs. King Emperor, (1924-25) 52 IC 40:

"The words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, 'act' includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the Appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait". "

41. In Dharnidhar and others vs. State of U.P. and others, 2010(7) SCC 759 Court said that Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of accused in crime. Section 34 IPC involves vicarious liability. If the intention is proved but no overt act was committed, the Section can still be invoked. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had common intention to commit the act. The phrase "common intention" means a pre-oriented plan and acting in pursuance of plan, thus, common intention must exist prior to commission of act in a point of time. The common intention to give effect to a particular act may even develop at the spur of moment between a number of persons with reference to facts of a given case.

42. In Ramesh Singh alias Photti v. State of Andra Pradesh, 2004(11) SCC 305 Court said that common intention essentially being a state of mind, it is very difficult to procure direct evidence to prove such intention. In most cases it has to be inferred from the act like, conduct of accused or other relevant circumstances of the case. The inference can be gathered from the manner in which accused arrived at the scene and mounted the attack, determination and concert with which attack was made and from the nature of injury caused by one or some of them. The contributory acts of persons who are not responsible for injury can further be inferred from the subsequent conduct after attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. Court held that totality of circumstances must be taken into consideration in arriving at conclusion whether accused had common intention to commit an offence of which they could be convicted.

43. The above observations have been followed in Balu and others vs. State (U.T. of Pondicherry), 2016(15) SCC 471.

44. A Constitution Bench has dealt with Section 34 IPC in Mohan Singh and another vs. State of Punjab, AIR 1963 SC 174 and held that Section 34 deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The Larger Bench dealing with the concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that 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. 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. Court further held:

"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-Emperor (supra) 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. "

45. Referring to Constitution Bench judgment and some others recently in Vijendra Singh and others vs. State of U.P., 2017(11) SCC 129 Court has said:

".... each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 Indian Penal Code is a question of fact and is to be ascertained from the evidence brought on record. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. "

46. We may examine now the facts of present case in light of exposition of law discussed above. Accused-appellant-1, Mahaveer Singh was obstructed in his work of filling soil by informant Rajmal Singh accompanied by Jagan Singh, Village Pradhan and some other persons in the morning of 20.10.1981. They said that filling of public passage with soil would have obstructed movement of Hansraj Singh, Hari Singh, Gajbir Singh etc. Thus entire cause which agitated appellants is the obstruction/objection created/ raised in the morning by some persons including informant and said obstruction/ objection related to persons physically present in the morning and also some whose cause was taken care by informant and others. It is this act of obstruction/ objection which was taken as an insult by appellants and they wanted to give lesson.

47. Appellant-1, Mahaveer Singh in the evening at about 5.00 PM on the same day i.e. 20.10.1981 himself came with a single barrel gun and called Appellants-2, 3 and 4 to come out along with their weapons so that persons who obstructed in the morning be required to pay for their act. Appellant-1 when called upon the other appellants to come with their weapon to teach lesson to objectionists, did not name anybody and, therefore, it was the entire group which was to be taught lesson. PW-2, Manveer Singh was also not present in the morning alongwith informant and other but alongwith informant he was also aimed and fired by appellants causing gunshot injuries. Hansraj is the person who was also to be affected by filling of passage and for him also objection was raised in the morning. Therefore, in the present case the words "furtherance of common intention" cannot be treated to confine to only informant but all those who were instrumental or actually caused obstruction/ objection in the morning to the act of Appellant-1 in filling of passage with soil. They were to be taught lesson and common intention was to kill all of them and in furtherance of this common intention when Hansraj came out and intervened, he was sought dead by Appellant-2. Thus appellants when fired upon informant (PW-1), Manveer Singh (PW-2) and Hansraj, brother of informant, whether one appellant fired or more than one appellant fired is of no consequence since all the appellants were acting in furtherance of common intention to punish the set of people who could dare to create and cause obstruction in the morning. It thus cannot be said that Hansraj was stranger and in respect thereto Appellants-1, 3 and 4 cannot be convicted by resorting to Section 34 read with Section 302 IPC.

48. Our attention was drawn to an illustration given by Court in Shankarlal Kachrabhai and others Vs. State of Gujarat (supra) which reads as under:

"If the common intention was to kill A and if one of the accused kills B to wreak out his private vengeance, it cannot possibly be in furtherance of the common intention for which others can be constructively made liable."

47. Aforesaid exception has no application in the present case since it was never pleaded by Appellants-1, 3 and 4 that Appellant-2 fired on Hansraj to wreak out his private vengeance and Appellant-2 also did not take any such defence in the statement recorded under Section 313 Cr.P.C. that he fired upon Hansraj to wreak out his private vengeance. Neither any such suggestion has come from any witness in the Court below nor any such case has ever been made out. Therefore, in the entirety of facts and circumstances and looking into the exposition of law as discussed above with respect of Section 34 IPC, we have no manner of doubt that conviction of Appellants-1, 3 and 4 under Section 304 read with Section 34 IPC cannot be said to be erroneous or illegal.

48. Learned Senior Advocate appearing for appellants next contended that judgment of Trial Court is very sketchy on this aspect inasmuch as without discussion of evidence in entirety by simply referring to individual evidence it has observed in penultimate paragraph as under:

"From the discussions held above, it is established from the evidence of the 3 eye witnesses, corroborated by the prompt F.I.R. and the medical evidence as well as from the evidence of the Ballistic Expert that all the 4 accused in furtherance of their common intention to commit the murder of Hansraj collected on the passage and out of them Neerpal caused fatal fire arm injuries to Hansraj with the intention of causing his death....."

49. We find that Court below has referred to all the witnesses and documents and judgment may not have contained a lengthy discussion on the aspect but for that reason alone if otherwise we find that ultimate finding and conclusion recorded by Court below for conviction of Appellants-1, 3 and 4 under Section 302 read with Section 34 IPC is correct, we have no reason to interfere with judgment under appeal.

50. No other point has been argued.

51. We, therefore, find no merit in appeal. It is accordingly dismissed.

52. All the appellants are on bail. Their bail bonds are cancelled and the sureties discharged. Appellants-1, 2 and 3, Mahavir Singh, Neerpal and Rambhool shall be taken in custody forthwith and sent to jail to serve out the sentence awarded to them.

53. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.

Order Date :- 31..07.2018

Manish Himwan/AK