KHELAWAN AND OTHERSversusSTATE

        HIGH COURT OF JUDICATURE AT ALLAHABAD
           CRIMINAL APPEAL No. - 1800 of 1988

Khelawan and others
                                               …..Appellant(s)

                           Versus

State
                                             …..Respondent(s)


Counsel for Appellant(s)     : Ali Hasan, Jai Singh, Vijay
                               Bahadur Yadav
Counsel for                  : A.G.A.
Respondent(s)


Court No. - 93                       Reserved On 31.8.2026
                                     Delivered On 8.9.2026

               HON'BLE SANTOSH RAI, J.

1.    Heard Sri Jawahar Lal Yadav, holding brief of Sri Vijay
Bahadur Yadav, learned counsel for appellant nos.1,2; Sri
Jai   Singh,   learned   counsel   for   appellant   no.3;   Sri
Purushottam Maurya, learned AGA for the State and
perused the material on record.

2.    Three accused appellants have filed the instant
appeal in the year 1988, during the pendency of the appeal
two of them namely, Khelawan and Ram Bali have already
died, hence the appeal qua them has already been abated
by this Court in view of Section 394 Cr.P.C. The surviving
appellant is only Ramapati. Consequently, this Court is not
required to, and does not, examine the correctness of the
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conviction   and   sentence   recorded    against   the    said
deceased appellants any further, and the findings recorded
by the trial court qua them shall not be treated a having
merged into any finding of this Court.

3.   This criminal appeal has been preferred by the
appellant against the judgment and order dated 8.8.1988
passed by the IVth Additional District & Sessions Judge,
Jaunpur, in Sessions Trial No.179 of 1986 (State Vs.
Khelawan & Ors.),     arising out of Case Crime No.11 of
1984, under Section 302 read with Section 34 IPC, Police
Station Sarpataha District Jaunpur whereby the appellant
has been convicted and sentenced to five years rigorous
imprisonment under Section 304 Part II read with Section
34 IPC.

4.   The prosecution case, in brief, is that on 7.2.1984, at
about 3:00 p.m., a quarrel took place at village Karimpur
Bind between Thodai son of Bhorai (father of the
complainant Tirath) and the three accused, namely
Khelawan, Rambali and the present surviving appellant
Ramapati, over the tethering of a bullock. During the
course of the said altercation, it is alleged that the accused
persons assaulted Thodai with lathi and danda, as a result
of which he fell down and died at the spot shortly
thereafter. A written report (Ext. Ka-1) was lodged by the
complainant Tirath at Police Station Sarpataha, on the
basis of which a case under Section 304 IPC was initially
registered and, after investigation and post-mortem, a
charge-sheet was submitted and the case was committed
to the Court of Session, where a charge under Section 302
IPC was framed against all three accused, to which they
pleaded not guilty.
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                                        CRLA No. - 1800 of 1988

5.   The post-mortem report (Ext. Ka-11) disclosed, inter
alia, a contused wound with fracture of the second and
third ribs over the chest, a swelling with fracture of the
third and fourth ribs, and certain abrasions on the
abdomen and knee. The Medical Officer opined that death
was caused due to shock and hemorrhage as a result of
the said ante-mortem injuries, and that injury nos.1 and 2
could not have been caused by a fall.

6.   The prosecution examined six witnesses: PW-1 Tirath
(complainant and alleged eye-witness), PW-2 Chandra
Prakash (scribe of the written report), PW-3 Julai Verma,
PW-4 R.P. Nirala (Investigating Officer), PW-5 Dr. R.K.
Singh (Medical Officer) and PW-6 Constable Lalbihari.
PW-2 and PW-3 were declared hostile and were cross-
examined by the prosecution with the leave of the Court.

7.   The learned trial court, disbelieving the defence
version that the deceased had fallen down on account of a
bullock breaking loose, held that the injuries found on the
deceased were caused by lathi and danda and were
attributable to the accused persons. However, on the
finding that there was no common intention to kill and no
weapon of a lethal nature was used, the trial court altered
the offence from Section 302 IPC to Section 304 Part II
read with Section 34 IPC and convicted all three accused
thereunder, sentencing each to five years' rigorous
imprisonment vide judgment dated 08.08.1988.

8.   In brief the grounds of appeal are that the conviction
of the appellants are against the weight of the evidence on
record; no offence is made out against the appellants; the
sentence is too severe.
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                                        CRLA No. - 1800 of 1988

9.   Learned counsel for the appellant has assailed the
impugned judgment and order of conviction, contending
that the learned trial court has failed to appreciate the
evidence on record in its correct perspective and has
convicted the appellant on the basis of insufficient and
unreliable evidence. It is, therefore, submitted that the
conviction and sentence recorded by the trial court are
unsustainable in law and the appellant deserves to be
acquitted.

10. Learned AGA, per contra, supported the impugned
judgment and submitted that the three accused, being
close relatives (son, father and grandfather), reached the
spot together and participated jointly in the altercation
with the deceased; the presence of the appellant at the
spot, abusing and associating himself with the assault, is
itself sufficient material to infer common intention under
Section 34 IPC, which does not require that each accused
must individually strike a blow.     Minor variations or
embellishments in the cross-examination of a rustic,
natural witness like PW-1 ought not to be given undue
weight so as to demolish an otherwise consistent and
truthful version regarding the joint assault, more so when
the FIR, lodged without delay, also implicates all three
accused. The trial court has already extended a benefit to
the accused by declining to convict them under Section
302 IPC and instead convicting them under the lesser
offence of Section 304 Part II IPC, and has imposed a
moderate sentence of five years' rigorous imprisonment;
there is no illegality or perversity in the impugned
judgment warranting interference in appeal.
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                                             CRLA No. - 1800 of 1988

11. I have given my anxious consideration to the rival
submissions and have gone through the record, including
the depositions of the witnesses and the impugned
judgment.

12. PW-1 Tirath is the sole witness projected by the
prosecution as an eye-witness to the occurrence. However,
in his cross-examination, PW-1 has categorically admitted
that he was not present on the spot from the inception of
the incident and reached the spot only upon hearing the
commotion. He has further stated in cross-examination
that it was the accused Rambali alone who inflicted two to
three lathi blows upon the deceased, while the appellant
Ramapati was merely standing nearby and hurling abuses.
This   material   admission   by      the    sole   eye-witness
completely exculpates the appellant of any overt act of
assault.

13. PW-2 Chandra Prakash and PW-3 Julai Verma,
examined    by    the   prosecution     to    corroborate      the
occurrence, were declared hostile and did not support the
prosecution case regarding assault by the appellant. Their
evidence, at best, establishes that a quarrel took place and
that the deceased sustained fatal injury, but does not
connect the appellant with any specific assaultive role.

14. There is no reliable material on record to show that
the appellant Ramapati shared any common intention or
knowledge, within the meaning of Section 34 IPC, with the
other co-accused to commit culpable homicide. It is
undisputed on record that the appellant was not armed
with any weapon, lathi or danda, at the time of occurrence.

15. Although the post-mortem report confirms that death
occurred on account of ante-mortem injuries, in the
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                                             CRLA No. - 1800 of 1988

absence of any reliable evidence connecting the appellant
with the actual infliction of those injuries, constructive or
joint liability under Section 34 IPC cannot be fastened upon
him merely because he was present at the scene along
with the other two accused.

16. The sole eye-witness has assigned a specific injury-
causing role to the co-accused Rambali alone, and no
injury, overt act, or blow has been attributed to the
surviving appellant Ramapati by any witness examined
during trial.

17. PW-1 himself has stated that he was working in his
field at the inception of the incident and reached the spot
only thereafter; and that in his examination-in-chief he
made a general, omnibus statement that "all the accused
persons" caused injury, which stands substantially diluted
and contradicted by his own specific admission in cross-
examination regarding the individual role of Rambali. Such
omnibus, general allegations, unsupported by any specific
overt act, cannot form a safe basis for conviction,
particularly where liability is sought to be fastened with the
aid of Section 34 IPC.

18. It is well settled that common intention under Section
34 IPC presupposes a prior meeting of minds and requires
the existence of a pre-arranged plan, which may be
inferred from the conduct of the accused and the
circumstances of the case, but such inference must be
based on cogent and convincing evidence and not on mere
conjecture. Mere presence of a person at the scene of
occurrence, without any overt act or other evidence
indicating his participation in the criminal act, is not
sufficient   to   fasten   constructive   liability   upon    him.
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                                                CRLA No. - 1800 of 1988

Something      more,      such       as   active      participation,
encouragement with knowledge, or a demonstrable act in
furtherance of the common intention, must be shown.

19. In Suresh & Anr. Vs. State of U.P. (2001) 3 SCC 673,
the Hon’ble Supreme Court held as under:-

    “The dominant feature for attracting Section 34 IPC Is the
    element of participation in absence resulting in the ultimate
    "criminal act". For appreciating the ambit and scope of
    Section 34, the preceding Sections 32 and 33 have always
    to be kept in mind. Under Section 32 acts Include illegal
    omissions. Section 33 defines the "act" to mean as well a
    series of acts as a single act and the word "omission"
    denotes as well a series of omissions as a single omission.
    The "act" referred to in the later part of Section 34 means
    the ultimate criminal act with which the accused is charged
    of sharing the common intention. The accused is, therefore,
    made responsible for the ultimate criminal act done by
    several persons in furtherance of the common intention of
    all. The section does not envisage the separate act by all the
    accused persons for becoming responsible for the ultimate
    criminal act. If such an Interpretation is accepted, the
    purpose of Section 34 shall be rendered Infructuous.
    Participation in the crime in furtherance of the common
    intention cannot conceive of some independent criminal
    act by all accused persons, besides the ultimate criminal act
    because for that Individual act law takes care of making
    such accused responsible under the other provisions of the
    Code. What is required under law is that the accused
    persons sharing the common intention must be physically
    present at the scene of occurrence and be shown not to have
    dissuaded themselves from the intended criminal act for
    which they shared the common intention. Culpability under
    Section 34 cannot be excluded by mere distance from the
    scene of occurrence. The presumption of constructive
    intention, however, has to be arrived at only when the court
    can, with judicial servitude, hold that the accused must have
    preconceived the result that ensued in furtherance of the
    common intention.                     (Paras 53, 39 and 40)
    39. The dominant feature for attracting Section 34 of the
    Penal Code, 1860 (hereinafter referred to as “the Code”) is
    the element of participation in absence resulting in the
    ultimate “criminal act”. The “act” referred to in the later part
    of Section 34 means the ultimate criminal act with which the
    accused is charged of sharing the common intention. The
    accused is, therefore, made responsible for the ultimate
    criminal act done by several persons in furtherance of the
    common intention of all. The section does not envisage the
    separate act by all the accused persons for becoming
    responsible for the ultimate criminal act. If such an
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                                              CRLA No. - 1800 of 1988

    interpretation is accepted, the purpose of Section 34 shall
    be rendered infructuous.
    40. Participation in the crime in furtherance of the common
    intention cannot conceive of some independent criminal
    act by all accused persons, besides the ultimate criminal act
    because for that individual act law takes care of making such
    accused responsible under the other provisions of the Code.
    The word “act” used in Section 34 denotes a series of acts
    as a single act. What is required under law is that the
    accused persons sharing the common intention must be
    physically present at the scene of occurrence and be
    shown not to have dissuaded themselves from the intended
    criminal act for which they shared the common intention.
    Culpability under Section 34 cannot be excluded by mere
    distance from the scene of occurrence. The presumption of
    constructive intention, however, has to be arrived at only
    when the court can, with judicial servitude, hold that the
    accused must have preconceived the result that ensued in
    furtherance of the common intention. A Division Bench of
    the Patna High Court in Satrughan Patar v. Emperor [AIR
    1919 Pat 111 : 20 Cri LJ 289] held that it is only when a
    court with some certainty holds that a particular accused
    must have preconceived or premeditated the result which
    ensued or acted in concert with others in order to bring
    about that result, that Section 34 may be applied.
    53. For appreciating the ambit and scope of Section 34,
    the preceding Sections 32 and 33 have always to be kept in
    mind. Under Section 32 acts include illegal omissions.
    Section 33 defines the “act” to mean as well a series of acts
    as a single act and the word “omission” denotes as well a
    series of omissions as a single omission. The distinction
    between a “common intention” and a “similar intention”
    which is real and substantial is also not to be lost sight of.
    The common intention implies a prearranged plan but in a
    given case it may develop on the spur of the moment in the
    course of the commission of the offence. Such common
    intention which developed on the spur of the moment is
    different from the similar intention actuated by a number of
    persons at the same time. The distinction between “common
    intention” and “similar intention” may be fine but is
    nonetheless a real one and if overlooked may lead to
    miscarriage of justice.”
20. In Lallan Rai & Ors. Vs. State of Bihar (2003) 1 SCC
268, the Hon’ble Supreme Court held as under:-

    “22. The above discussion in fine thus culminates to the
    effect that the requirement of statute is sharing the common
    intention upon being present at the place of occurrence.
    Mere distancing himself from the scene cannot absolve the
    accused — though the same however depends upon the fact
    situation of the matter under consideration and no rule
    steadfast can be laid down therefor.”
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                                          CRLA No. - 1800 of 1988

21. In Jasdeep Singh @ Jassu Vs. State of Punjab (2022)
2 SCC 545, the Hon’ble Supreme Court has affirmed the
principles regarding Section 34 IPC as laid down in the
abovementioned cases.

22. In the present case, the entire edifice of the
prosecution case, insofar as it seeks to connect the
appellant with the assault, rests upon the testimony of
PW-1 Tirath, since PW-2 and PW-3 have been declared
hostile and do not support the prosecution version
regarding the appellant's role. It is significant that PW-1
himself, in his cross-examination, has candidly admitted
that he was not present on the spot from the very inception
of the occurrence, and that he had been working in his field
and reached the spot only upon hearing the commotion.
More importantly, he has specifically stated that it was the
co-accused Rambali who inflicted two to three lathi blows
upon the deceased, while the appellant was only standing
and abusing. This is a specific and material admission by
the sole witness upon whom the prosecution rests its case,
and it operates directly in favour of the appellant.

23. Where the sole witness to an occurrence himself
assigns a specific and individuated role of assault to one
accused while categorically excluding another accused
from the actual act of assault, it would not be safe or
judicially permissible to nevertheless convict the excluded
accused on an omnibus, general allegation appearing
elsewhere in the same witness's testimony, or on the
theory of constructive liability alone. The prosecution
cannot be permitted to rely selectively on the general part
of a witness's statement while ignoring the specific,
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                                                 CRLA No. - 1800 of 1988

favourable admissions elicited from the same witness in
cross-examination.

24. It is also undisputed that no weapon was recovered
from, or attributed to, the appellant Ramapati, and that no
injury on the person of the deceased has been specifically
linked to any act of the appellant. The post-mortem report,
though establishing that death was homicidal and caused
by lathi/danda blows, and indeed stands negatived by the
specific admission of PW-1 attributing the assault to
Rambali alone and not by appellant Ramapati.

25. This Court finds that the learned trial court, while
examining the culpability of the accused under Section 34
IPC, proceeded to convict all three accused on a common,
undifferentiated finding, without separately appreciating
the specific and exculpatory admission made by PW-1 in
cross-examination qua the appellant. Such an omnibus
approach, without an individualised assessment of the role
of each accused, particularly in the face of a specific
exculpatory   admission   by        the   sole    witness,     is   not
sustainable in law.

26. Mere abusing, or mere presence at the spot along
with persons who assault the victim, without anything
further to indicate a shared intention to cause the injuries
that resulted in death, falls short of the standard required
to bring home a charge with the aid of Section 34 IPC. On
the facts of the present case, this Court is of the view that
the prosecution has failed to prove, beyond reasonable
doubt, that the appellant Ramapati shared the common
intention, or had the requisite knowledge, to commit the
offence for which he has been convicted.
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                                                                     CRLA No. - 1800 of 1988

                            27.         For the reasons recorded above, this Court is
                            satisfied that the conviction of the appellant Ramapati
                            under Section 304 Part II read with Section 34 IPC is not
                            sustainable and is liable to be set aside. He is entitled to
                            the benefit of doubt.

                            28. The appeal is allowed.

                            29. The judgment and order dated 8.8.1988 passed by
                            the IVth Additional District & Sessions Judge, Jaunpur, in
                            Sessions Trial No.179 of 1986, convicting and sentencing
                            the appellant Ramapati under Section 304 Part II read with
                            Section 34 IPC, is set aside qua the appellant Ramapati.
                            The appellant Ramapati is acquitted of the charge.

                            30. If the appellant Ramapati is in custody, he shall be
                            released forthwith, unless wanted in connection with any
                            other case. If he is on bail, his bail bonds and sureties
                            furnished earlier during trial/appeal stands discharged.

                            31. Let trial court record along with copy of this judgment
                            be transmitted within one week to the court concerned for
                            information and necessary compliance.

                            32. The Registrar (Compliance) is also directed to serve a
                            copy of this order within 48 hours by FAX/e-mail to the
                            trial court through District & Sessions Judge concerned for
                            compliance.




                                                                       (Santosh Rai,J.)

                            September 08, 2026
                            RA




Digitally signed by :-
RAZIQ ALI
High Court of Judicature at Allahabad