Supreme Court of India
KOMALversusSTATE OF M.P.
- Citation
- 2009 INSC 134
- Decided
- 9 February 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The High Court erred in convicting the appellant under s.304 Part I read with s.34 as there was no proof of common intention or participation, and the trial court's conviction under s.323 is restored.
Summary
The appellant, Komal, was convicted by the trial court under IPC s.323 for assaulting the deceased Daulat. The Madhya Pradesh High Court altered the conviction to s.304 Part I read with s.34, holding that Komal had caused the fatal injury in furtherance of a common intention. On appeal, the Supreme Court held that there was no evidence that Komal assaulted Daulat, no common object, and he was not a member of any unlawful assembly; consequently, the High Court could not sustain a conviction under s.34. The Court clarified that s.34 requires proof of a common intention and participation in the criminal act, and it is a rule of evidence, not a substantive offence. Accordingly, the trial court's conviction under s.323 was restored and the High Court's order was quashed.
Issues considered
- Whether the appellant can be convicted under IPC s.304 Part I read with s.34 in the absence of proof of his participation in the fatal injury.
- Whether the facts establish a common intention or common object among the accused as required by s.34.
- Whether the High Court was justified in altering the trial court's conviction.
Legislation cited
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 294, s. 302, s. 304(Part I), s. 323, s. 34, s. 341
Subjects
Section 34common intentionjoint liabilityunlawful assemblyIPCmurderconviction alterationcriminal law
Judgment
(2009] 1 S.C.R. 1142
A KOMAL
v.
STATE OF M.P.
(Criminal Appeal No. 243 of 2009)
FEBRUARY 9, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Penal Code, 1860:
c
s. 304 (Part I) rlw s.34 -Accused alongwith co-accused
charged for murder and for causing injuries to others -
Conviction of accused u/s 323 by trial court - High Court
altering the conviction to one u/s. 304 (Part I) rlw s. 34 finding
D that he assaulted the deceased - On appeal, held: High Court
wrongly altered the conviction - it was nobody's case that the
accused assaulted the deceased - Courts below having held
that the accused was not a member of unlawful assembly and
there was no common object, could not have been convicted
u/s. 304 (Part I) rlw s. 34 - Conviction by trial court restored.
E
s. 34 - Common object - Scope and applicability of -
Discussed.
Appellant-accused was tried along with seven co-
l
F accused for causing death of one person and injuries to
others. Trial court convicted him uls. 323 IPC for his
individual act and acquitted him of other charges. High
Court, convicted the appellant uls. 304 (Part I ) rlw s. 34
IPC. Hence the present appeal.
G Allowing the appeal, the Court
HELD: 1. High Court has erroneously come to the
conclusion about the role of appellant. It was erroneously
held that the appellant had caused injury on the person
H 1142
KOMAL v. STATE OF M.P. 1143
of the deceased. It was nobody's case. It has been A
categorically held by both the trial court and the High
Court that there was no common object and in any event
the appellant was not a member of any unlawful
assembly. Having held so, the High Court ought not to
have altered the conviction as recorded by the trial court. B
The order of the trial court vis-a-vis the present appellant
is restored and that of the High Court vis-a-vis the present
appellant stands quashed. [Pa_ras 6 and 9) [1148-B; 1149-
E-G]
2.1 Section 34 has been enacted on the principle of C
joint liability in the commission of a criminal act. The
Section is only a rule of evidence and does not create a
substantive offence. The distinctive feature of the Section
is the element of participation in action. The liability of
one person for an offence committed by another in the D
course of criminal act perpetrated by several persons
arises under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who
join in committing the crime. (Para 7] (1148-C-D]
E
2.2. Direct proof of common intention is seldom
available and, therefore, such intention can only be
inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances.
In order to bring home the charge of common intention, F
the prosecution has to establish by evidence, whether
direct or circumstantial, that there was plan or meeting
of mind of all the accused persons to commit the offence
for which they are charged with the aid of Section 34, be
it pre-arranged or on the spur of moment; but it must G
necessarily be before the commission of the crime. [Para
7] (1148-D-F]
2.3. The provision is intended to meet a case in which
it may be difficult to distinguish between acts of
individual members of a party who act in furtherance of H
1144 SUPREME COURT REPORTS [2009] 1 S.C.R.
A the common intention of all or to prove exactly what part
was taken by each of them. Section 34 is applicable even
if no injury has been caused by the particular accused
himself. For applying Section 34 it is not necessary to
show some overt act on the part of the accused. [Paras
B 8) [1149-C-D]
Ashok Kumar v. State of Punjab AIR 1977 SC 109 and
•
Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR
1993 SC 1899, referred to.
c Case Law Reference:
AIR 1977 SC 109 Referred to. Para 7
AIR 1993 SC 1899 Referred to. Para 8
D CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 243 of 2009.
From the Judgment and Order dated 9.12007 of the High
Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.
245 of 1993.
E
Suryanarayana Singh & Pragati Neekhra for the Appellant.
Siddhartha Dave, Jemtiben AO and Vibha Datta Makhija
for the Respondent.
F The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
G Bench of the Madhya Pradesh High Court at Jabalpur allowing
the appeal filed by the State of M.P. upholding the appellant
guilty for offence punishable under Section 304 Part I read with •
Section 34 of the Indian Penal Code, 1860 (in short the 'IPC')
and sentencing him to undergo imprisonment for 7 years.
H However, his acquittal for offences punishable under Sections
KOMAL v. STATE OF M.P. [DR. ARIJIT PASAYAT, J.] 1145
. 147, 148, 302 read with Section 149 IPC was upheld. Eight A
persons faced trial for alleged commission of offences. Gubdu
and lshwar A-1 and A-2 respectively were charged for
commission of offences punishable under Sections 147, 148,
323, 149 and 302 IPC. Rest of the accused persons were
charged under Sections 147, 148, 323 read with Section 149 B
and 302 read with Section 149 IPC. The trial Court recorded
conviction and imposed sentences as follows:
A-2 lshwar was convicted under Section 302 and
sentenced to undergo imprisonment for life and also to pay fine
of Rs.500/- and in default to further undergo simple
c
imprisonment for one month. A-4 Komal was found guilty of the
offence punishable under Section 323 IPC and was sentenced
to pay fine of Rs.500/- and in default to undergo simple
imprisonment for one month but was acquitted of the other
offences and the other six accused (A-1, A-3, A-5 to A-8) were D
acquitted of all the charges.
Accused lshwar preferred Criminal Appeal No.978 of
1992 while the State of M.P. filed Criminal Appeal No.245 of
1993 against the acquittal of seven accused persons. E
3. Prosecution version in nutshell is as follows:
All the accused are residents of village Doomar, where
~ complainant Shrilal (PW7) father of Daulat (hereinafter referred
to as the 'deceased') also resided. He is a barber by F
profession. Although, he is generally engaged for the work of
hair cutting, shaving etc., yet ~e also renders services as an
assistant in marriages solemnized in accordance with
traditional Hindu order. However, in view of dispute with Al, A3
& A4 as to payment of money for the services rendered, the G
complainant at the relevant point of time, was not serving as
barber to these accused. hJ turn, they also called another barber
namely lshwar Das, the A2, from another village Purena.
On the auspicious occasion of "Akshay Tritiya" that fell on
H
1146 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 19th April, 1988, a number of marriages were proposed to be
solemnized in village-Doomar. Shrilal (PW?) was working in the
Pangat (community feast) at the residence of one Komal
Kachhi. He had deputed his son deceased Daulat to render
service in the marriage ceremony organized at the residence
B of one Bairam Ahir. At about 3:00 p.m., when the guests were
taking meals at the residence of Bairam, Al called Daulat
through Narayan Singh to a place near Mata ki Madiya (place
of worship of the Goddess). Al and A2 gave Kharerua (piece
of wood used in bullock cart) blows on Daulat's head. He fell
c down and was rendered unconscious. His younger brother
Harlal (PW8) immediately went to the house of Komal Kachhi
and informed his father Shrilal (PW?) about the incident. Shri
and his wife Phoolabai rushed to the spot, where he was also
assaulted by Al and A2 with Kharerua. A3 & A4 wielded lathies
D on his wife Phoolabai and his younger son Harlal was also
struck with lathies by A5 and A8.
Parents and brothers of unconscious Daulat immediately
took him to the police station, where Shrilal lodged the first
information report (Ex-P/7) Thereupon, a case under Sections
E 294 341 & 323 read with Section 34 IPC was registered. Daulat
and other injured namely, Shrilal, Phoolabai and Harlal were
sent to the PHC Bankhedi for medical examination. Dr. R.C.
Agrawal (PW15), after examining Daulat, referred him to the
District hospital, Hoshangabad for admission and treatment and
F also advised radiological examination of the injury found on the
scalp. Pursuant to his advice, Daulat was taken to the District
Hospital at Hoshangabad where he succumbed to the injuries
on 20.4.1988.
G After inquest proceeding, the dead body of Daulat was
sent for post mortem that was conducted by Dr. Ashok Kumar
Tiwari (PW14). During investigation, the accused were arrested
and at their instance respective weapons were recovered. One
white shirt worn by the deceased at the time of incident was
also recovered and seized. All these articles were sent to the
H
KOMAL v. STATE OF M.P. [DR. ARIJIT PASAYAT, J.] 1147
FSL, Sager, along with the ordinary and blood stained soil A
seized from the spot for chemical examination. Observing
bloodstains on all these articles excepting the ordinary earth
seized from the spot, the Chemical Examiner forwarded the
exhibits to Serologist for further examination. However, the
Serologist could only determine presence of human blood on B
the shirt and the blood stained earth seized from the spot.
The trial Court as noted above convicted A-2 lshwar and
A-4 the present appellant for offence punishable under Sections
302 and 323 IPC respectively for their individual acts and C
sentenced them as indicated above. No appeal was filed by
A-4 Koma! against his conviction. Appeal was filed by State
before High Court. According to the stand of State before the
High Court, the true parameters of Section 149 IPC were not
kept in view. The High Court accepted the stand and directed
conviction as noted above. D
4. In support of the appeal, learned counsel for the
appellant submitted that the High Court having noted at one
place that there was no common object, the question of
convicting the present appellant for offence relatable to section E·
304 Part I read with Section 34 IPC does not arise. With
reference to para 30 of the judgment it is submitted that there
is lack of clarity as to what the High Court wanted to observe.
The High Court has observed that there was common object
and the appellant was not a member of the unlawful assembly. F
It has been held by the High Court that the present appellant
... was also convicted for causing injury on the person of Daulat
and he has not challenged his conviction. It was pointed out that
the trial Court formulated the question as to whether the
accused persons in furtherance of their common intention G
caused injuries on the complainants Shrilal, Phoolabai and
Harlal intentionally. There was no evidence that the present
appellant caused any injury on the person of Daulat It was
pointed out that the evidence of Shrilal (PW-7) and his son
Jagdish (PW-9) was held to be not acceptable.
H
1148 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 5. Learned counsel for the respondent-State on the other
hand supported the judgment.
6. We find that the High Court has erroneously come to
the conclusion about the role of appellant. It was erroneously
held that the appellant had caused injury on the person of Daulat.
8
It was nobody's case.
7. Section 34 has been enacted on the principle of joint
liability in the commission of a criminal act. The Section is only
a rule of evidence and does not create a substantive offence.
C The distinctive feature of the Section is the element of
participation in action. The liability of one person for an offence
committed by another in the course of criminal act perpetrated
by several persons arises under Section 34 if such criminal act
is done in furtherance of a common intention of the persons
D who join in committing the crime. Direct proof of common
intention is seldom available and, therefore, such intention can •
only be inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances. In order
to bring home the charge of common intention, the prosecution
E has to establish by evidence, whether direct or circumstantial,
that there was plan or meeting of mind of all the accused
persons to commit the offence for which they are charged with
the aid of Section 34, be it pre-arranged or on the spur of
moment; but it must necessarily be before the commission of
F the crime. The true contents of the Section are that if two or
more persons intentionally do an act jointly, the position in law
is just the same as if each of them has done it individually by
himself. As observed in Ashok Kumar v. State of Punjab (AIR
-
1977 SC 109), the existence of a common intention amongst
the participants in a crime is the essential element for
G application of this Section. It is not necessary that the acts of
the several persons charged with commission of an offence
jointly must be the same or identically similar. The acts may be
different in character, but must have been actuated by one and
the same common intention in order to attract the provision.
H
KOMAL v. STATE OF M.P. (DR. ARIJIT PASAYAT, J.) 1149
8. The Section does not say "the common intention of all", A
..,
nor does it say "and intention common to all". Under the
provisions of Section 34 the essence of the liability is to be
found in the existence of a common intention animating the
accused leading to the commission of a criminal act in
furtherance of such intention. As a result of the application of B
"principles enunciated in Section 34, when an accused is
convicted under Section 302 read with Section 34, in law it
~
means that the accused is liable for the act which caused death
of the deceased in the same manner as if it was done by him
alone. The provision is intended to meet a case in which it may c
be difficult to distinguish between acts of individual members
of a party who act in furtheran.ce of the common intention of all
or to prove exactly what part was taken by each of them. As
was observed in Ch. Pu/la Reddy and Ors. v. State of Andhra
Pradesh (AIR 1993 SC 1899), Section 34 is applicable even
D
if no injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some overt
act on the part of the accused.
9. It has been categorically held by both the trial Court and
the High Court that there was no common object and in any E
event the present appellant was not a member of any unlawful
assembly. Having held so, the High Court ought not to have
altered the conviction as recorded by the trial Court.
Accordingly, the appeal is allowed. The order of the trial Court
... vis-a-vis the present appellant is restored and that of the High F
Court vis-a-vis the present appellant stands quashed. If the
appellant has served the sentence as imposed by the trial
-c Court, the bail bonds executed for giving effect to order dated
8.1.2008 shall stand discharged. Otherwise, the appellant shall
surrender forthwith to serve the remainder of sentence. G
..,, K.K.T. Appeal allowed .
)
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 34"Sign in to search