Holding

All three respondents were held jointly liable for murder under Section 302 read with Section 34 of the IPC, and the High Court’s acquittal was set aside.

Summary

The case concerns the murder of Ajay Sharma, the nephew of Rangnath Sharma, by three accused who allegedly took the victim to a terrace, restrained him, and shot him with a pistol. The trial court convicted all three under Sections 302 read with 34 of the IPC and Section 27 of the Arms Act, but the Patna High Court acquitted them, citing the distance of the scene, alleged inability of witnesses to see the incident, and a delay in filing the FIR. The Supreme Court examined the eye‑witness testimonies, medical evidence confirming a gunshot wound as the cause of death, and the explanation for the FIR delay, finding them credible. It held that the two accused who held the victim shared a common intention with the shooter, making them jointly liable under s.302 r/w s.34 IPC. Consequently, the High Court’s acquittal was set aside and the trial court’s conviction restored.

Issues considered

The applicability of Section 34 IPC to hold the two accused jointly liable for murder.
Whether the eye‑witnesses could reliably identify the accused despite the alleged distance and obstructions.
Whether the delay in recording the FIR vitiated the prosecution case.
The relevance of the medical evidence in establishing the cause of death.

Legislation cited

Arms Act, 1959s. 27
Indian Penal Code, 1860s. 302, s. 34, s. 364

Subjects

murdercommon intentionSection 34 IPCjoint liabilityidentification of accusedFIR delayeye‑witness testimonyarms possession

Judgment

[2008] 12 S.C.R. 324

A RANGNATH SHARMA
v.
.SATENDRA SHARMA & ORS.
(Criminal Appeal Nos. 55.3-554 of 2001)
AUGUST 20, 2008
B
[DR. ARIJIT PASAYAT AND DR.' MU.KUNDAKAM
SHARMA, JJ.]

Penal Code, 1-860 :
. .
C s.302 rlw s.34 ·_Murder- Caused by gun-shot injury-
Common intention - .Three accused - They took deceased to
the place of incident - Main accused fired gun shot after the
other two accused held the deceased - .Whether. the two other
ace.used were jointly liable =- Held, Yes - They shared common
o intention with the.-main accuse&' and were thus· liable to be
convicl~d uls.302 with the aid of s.34 -Arms Act, .1959 - s.27.
. . .. .
s..34 ...:. Commornntention ~ Principle of joint liab.ility in -(
doing of a criminaJ act - Applicability of s. 34_ - Discussed. ~ +

E s. 302 rlw s. 34 - Murder - Setting aside oiconviction by'
High Court on ground of delay in recording of FIR -·
·Justification - Held, not justified, since time period between
the incident and filing of Fl.R was satisfactorily explained by
the prosecution.

F Crimina'I trial - Identification of accused - Held:·
Probability of identification, even from far away place, is muc{J
higher where accused is well known to the..eye-witn.ess.
According to the prosecution, in view of a previous
enmity, the three accused-Respondents took the
G nephew of PW7 to the place of the incident and grappled
and exchanged hot words with him, whereafter
Respondent Nos.2 and 3 held PW7's nephew and
Respo'ndent No.1 took out a pistol from '1is waist and
fired it on his chest resulting in his death.
H 324
RANG NATH SHARMA v. SATENDRA SHARMA 325
& ORS.
_.. ··T
The Trial Court·convicted. the_ Respondents under A
s.302 r/w s.34 and s.364 IPC. Respondent No.1 was
additionally convicted under s.27 of the Arms Act.
On appeal, the High Court acquitted the Respondents
inter alia on grounds i) that the place of occurrence was at
a considerable distance and therefore, neither it was B
.r
t
possible for PWs 4,5,6 and 7 to hear the quarr~I nor it was
possible for them to see the occurrence from the place
where they were stationed and (ii) that since there was
· considerable delay in recording the FIR, the prosecution
case had become tainted. Hence the present appeals. c
Allowing the appeals, the Court
HELD:1. PW-7, the informant, stated in his deposition
that the three accused.- came to his house and asked the
deceased to accompany them .. It is also stated by him D
that ·he prevented the deceased from going with them
) but Respondent No.1 told that the deceased would return .
....,. soon. The aforesaid version of the informant was not at
all challenged by the defense by putting any direct
question or otherwise in the cross-examination. The only E
stand taken by defense was that the occurrence did not
take place in the manner it is alleged. There is no. other
• evidence available on record from whiCh even a doubt
with respect to correctness of the said·statement could
be created. [Para 6] [334-8-C] F
¥ 2.1. The place of occurrence was a terrace meaning .
thereby that it was a little bit high land. The height of the
terrace was about two feet. From the evidence, it is
- clearly proved and established that ~he place where the
appellant (PW7) had reached at the time of occurrence G
...... was not very far from the place of occurrence. Therefore,
it could not have been said that the said place was not
visible and accordingly the High Court was not justified
in arriving at the conclusi.on that the said place where
the occurrence took place could not have been visible H
326 SUPREME ·coURT REPORTS [2008] 12 S.C.R.

'1 ""'
A from the place where the informant was stationed at the
time of occurrence. PW-7 as also the other witnesses
have vividly described the manner in which the
occurrence had taken place. All the said witnesses were
examined at length. during the trial by defense but on
B perusal of the· same no contradiction was found. [Para
7] [334-G H, 335-335-A-C] -1-
~

2.2. Even otherwise if a person is well known to the
other, then the probability of identification of said person
even from a far away place is much higher. [Para 8] [335-C]
c
State of A.P v. Dr M. V Ramana Reddy (1991) 4 SCC
536 - relied on.
3. The action of the eye witnesses is corroborated
by the medical evidence. The doctor, PW-8, conducted
D the post mortem examination and injuries were found
on the body of the deceased. So far as the first injury is
concerned it is clear that the same was because of gun -(
shot, which was established from the medical evidence
-+-
on record. So far as the second injury is concerned, the
E defense tried to establish that the said injury could not
have been received by the deceased during the incident
and in the manner as stated by the prosecution and
also that the doctor who conducted the post mortem
examination has stated in his report that alcohol was
F found in the stomach of the deceased meaning thereby
that the deceased was intoxicated at the time of his -¥ '-.,

death. That, however, in no manner shakes the
prosecution case nor any doubt could be created, for a
person could otherwise consume alcohol during the
course· of the day. So far as the second injury is
G
concerned, it is true that the doctor has found abrasion
--
over lower portion of the interior surface of the penis. ~

Such an injury could have been received by the
deceased during the scuffle and grappling, which had
taken place before the firing of the pistol. But the fact
H
RANGNATH SHARMA v. SATENDRA SHARMA 327
& ORS .
•
..., .

remains that main injury received by the deceased which A
was the cause of death, was received by the gun shot
--4I injury received from the pistol, fired by Respondent No.1.
[Para 9] [335-E, 336-A-D]
4. As per the prosecution, the incident took place
between 5:30 - 6.00 P.M. and the informant along with B
~ two others left for the Police Station, on foot, at about
t 6:30 P.M., which is near about 4 miles away from the
place of occurrence and reached there at about 8:30 P.M.
As the report was not accepted immediately he had to
wait. Thus the time period between the incident and filing c
of F.1.R was satisfactorily explained. [Para 10] [336-F-G]
5. The evidence on record clearly proves and
establishes that PWs 4 to 7 were near the place of
occurrence at the time of alleged occurrence and that
D
they had seen the accused Respondent Nos. 2 and 3
holding the deceased and Respondent No.1 firing at the
)· deceased. PWs 1 to 3 have also categorically stated that
• they heard the sound of firearm and they immediately
rushed to the place of occurrence and saw the aforesaid
three accused persons fleeing towards the western side. E
Although there is evidence to show that the place of
occurrence was at a distance from the cabin of the
informant and crops had· intervened in between the
playground and the place of occurrence but it has not
come on evidence that because of the high crops of F
jinora and maize, eye witnesses could not have seen
the occurrence which had taken place at a terrace, which
·was comparatively raised land. None of them could be
said to be a chance witness and on reading the evidence
it is found that they were natural witnesses who had G
seen the occurrence, heard the sound of firearm and
~
saw the accused- respondents fleeing away from the
place of occurrence. All the aforesaid evidence confirm
the fact that the deceased was taken away from his -
hou.se before the alleged occurrence by the accused H
l

328 SUPREME COURT REPORTS [2008] 12 S.C.R.

·A persons and has been shot dead by Respondent No.1.
..
_,..
[Para 11] [336-H, 337-A-D]
6.1. 5.34 IPC has been enacted on the principle of
joint liability in the doing of a criminal act. The section
is only a rule ··of evi9ence and does not create a
8 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
course of criminal act perpetrated by several persons.
arises under s.34 if such criminal act is dohe in
C furtherance of a common intention of the persons who
join in committing the crime. Direct proof of common
intention is seldom avail-able and, therefore, such
intention can only be inferred from the circumstances
appearing from the proved facts of the case a~d the
D proved circumstances. In order to bring home the charge
of common intention,' the prosecution has t() establish
by evidence, whether direct or circumstantial, that there
was plan or meeting of minds_ of all the accused persons
to commit the offen.ce for which they are charged with
E the aid of s.34, be it pre-arranged or on the spur of the
moment; but it must necessarily be before the
commission of the crime. The true concept of the section
is that if tWo or mqre persons intentiol)ally- do an act
jointly, the position in law is just the same as if each of
F them has done it individually by himself. The existence
of a common intention amongst the participants in a
crime is the essential element for application of this
section. It is not necessary that the acts of the several
persons charged with commission of an offence jointly
G must be the sarrie or identically similar. The acts may be
different in character, but must have been actuated by
one and the same common intention pervading amongst
all accused jn or-der to attract the provision. Section 34
is applicable even if no injury has been caused by the
particular accused himself. For .applying s.34 it is not
H
RANGNATH SHARMA v. SATENDRA SHARMA 329
& ORS.

necessary to show some specific overt act on the part A
of the accused, when it is shown that there was common
intention and meeting of mind. [Para 12] [337-E-H; 338-
A-D]
6.2. Respondent Nos. 2 and 3 were also instrumental
in bringing the deceased from his house in the company B
of Respondent No.1 to the place of occurrence with the
common intention. As per the F.l.R and in their
depositions during trial PWs 4, 6 and 7 specifically
mentioned that they saw the said two accused holding
the deceased which made it possible for Respondent C
No.1 to fire gun shot injury on the deceased. Considering
the facts and circumstances in their totality and taking
holistic view of the facts of this case, it is clear that the
prosecution has been able to establish that Respondent
Nos.2 and 3 shared a common intention with accused D
Respondent No.1 and therefore, by virtue of s.34 IPC
they are liable for the same offence. [Para 13] [340-D-H]
'r
Ram Taha/ v. State of UP, (1972) 1 SCC 136; Ramesh
+ Singh v. State of A.P (2004) 11 SCC 305 and lsrar v. State E
of UP (2005) 9 sec 616 - relied on.
Case Law Reference
(1991) 4 sec 536 relied on Para 8
(1972) 1 sec 136 relied on · Para 13
F
(2004) 11 sec 305 relied on Para 13
(2005) s sec 616 relied on Para 13
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal Nos. 553-554 of 2001
G
From the final Judgment and Order dated 9.08 .2000 of
../.4 the High Court of Patna in Criminal Appeal Nos. 6 & 86 of
1998
Gaurav Agrawal and Prashant Kumar for the Appellant.
H
330 SUPREME COURT REPORTS [2008] 12 S.C.R.

A Nagendra Rai, Alok Kumar, Jayesh Gaurav, Gyan
Shankar, Anu Mohla, Gopal Singh and Manish Kumar for the
Respondents.
The Judgment of the Court was delivered by
B DR. MUKUNDAKAM SHARMA, J. 1. These appeals,
which are filed by the complainant, are against an order of
acquittal passed by the Patna High Court on 9th August, 2000,
whereby the Division Bench acquitted the respondents while
allowing the appeals filed by them questioning the judgment
c of conviction and sentence passed by Additional Sessions
Judge II, Gaya on 22nd December, 1997 in Sessions Tr. Nos.
177/1995 and 134/1995.
2. Satendra Sharma, respondent No. 1 in Crl. Appeal
553/2001 was tried for offences punishable under Section
D 364, Section 302 read with Section 34 of the Indian Penal
Code, 1860 (in short the 'IPC') and Section 27 of the Arms
Act, 1959 while Pankaj Sharma and Ramakant Sharma,
respondent Nos. 1 and 2 respectively in Crl. Appeal 554/ +
2001 were tried for offences punishable under Section 364,
E Section 302 read with Section 34 IPC for murder of one Ajay
Sharma (hereinafter referred to as the 'deceased'). The trial
court found that all the three respondents are guilty and
sentenced them to undergo rigorous imprisonment for ten
years for offence under Section 364 IPC and rigorous
F imprisonment for life for offence under Section 302 read with
Section 34 IPC. Satendra Sharma was ·further sentenced to
undergo rigorous imprisonment for five years for offence
punishable under Section 27 Arms Act. All the sentences were
to run concurrently.
G 3. The prosecution case as unfolded during the trial is
.as follows:
On 24.09.1994 at about 5.00 p.m., the deceased who
was. the nephew of Rangnath Sharma (PW-7), the informant,
H was sitting at the door of his house in village Bhori, Police
RANGNATH SHARMA v. SATENDRA SHARMA 331
& ORS. [DR. MUKUNDAKAM SHARMA, J.)
-..J, y
Station Tekari, Distt. Gaya. At that time the three respondents A
herein who belong to the same village came there and took
the deceased with them. It is alleged that Rangnath Sharma
tried to prevent his deceased nephew from going along with
the respondents but Satendra Sharma, took the deceased
along with him telling Rangnath Sharma that the deceased B
~'
would return soon, whereupon the deceased went with the
~ aforesaid three persons. It is also alleged that the deceased
was taken by the three persons towards the northern side of
the village.
It further appears to be the case of the prosecution that c
the informant along with Sidhnath Sharma (PW-5) also went
towards his cabin situated on the northern side of the. village
for attending call of nature and giving the round around his
field .and that when they proceeded about 150 yards on the
western side of the cabin they saw Satendra Sharma, Pankaj D
Sharma and Ramakant Sharma, grappling and exchanging
,. hot words with the deceased. Thereafter, Satendra Sharma
+ took out pistol from his waist and fired it on the chest of the
deceased as a result of which the deceased fell down. Upon
this Rangnath Sharma along with Sidhnath Sharma while E
raising hulla proceeded towards the place of occurrence. The
accused persons threatened Rangnath Sharma and Sidhnath
Sharma that if they proceed any further they would be shot
dead and so saying the accused-respondents ran away
towards the western side. In the meanwhile, some villagers F
• -¥- who were playing football in the field also came there and
saw the accused persons committing the alleged occurrence.
The informant also stated that the main reason for the
alleged occurrence was the fact that about four days prior to
the date of occurrence a quarrel had taken place regarding G
.;4' irrigation of the land with Satendra Sharma and his father
which at that time was settled by the interference of the villagers
but it is due to the said grudge that the accused persons
killed the deceased on 24.09.1994. The informant stated that
immediately after the said occurrence he went to Tekari Police H
332 SUPREME COURT REPORTS [2008] 12 S.C.R. r-
t:-
''( J._,
,,-
A Station where his statement was recorded. On the basis of the
said statement First Information Report was drawn up and in the ,~
.
same night the police visited the place of occurrence, prepared
the inquest report of the deceased and thereafter sent the dead
body of the deceased for post mortem examination.
r
B After completing of the investigation, the police submitted 4-
charge sheet against the three respondents for the offences f
under Sections 364 and 302 read with Section 34 IPC and an
additional charge under Section 27 of the Arms Act was
leveled against Satendra Sharma as he was in possession of
c a Pistol. After filing of the charge-sheet, charges were drawn
up against the accused persons who pleaded not g•Jilty for
the said charges. Consequently, trial was held, during the
course of which prosecution examined ten witnesses in support
of their case. According to the prosecution, PWs 4 (Sahjanand
D Sharma), 5 (Sidhnath Sharma) and 6 (Kaushal Kishore
;
Sharma) are eye witnesses. PVv 7 - Rangnath Sharma is the
informant and also an eye witness. On completion of the trial,
.., ~

on the basis of the evidence recorded, the trial court found the +
accused guilty under the above-mentioned charges and
E convicted and sentenced them as indicated hereinabove.
Aggrieved by the said judgment and order of the Trial
Court the respondents preferred appeals before the High
Court. The said appeals were allowed by the Division Bench
of the High Court against which the present appeals are filed
F by the complainant. In the present appeals the order of
~
~

acquittal has" been challenged. The appeals were listed before
us for final hearing on which we heard learned counsel
appearing for the parties.
4. Mr. Gaurav Agrawal, learned counsel appearing for
G
the cppellant drew our attention to the depositions of the
~
witnesses and took us through the entire evidence on record.
He submitted before us that the depositions of the eye-
witnesses have not been believed and acted upon by the
High Court and that the High Court acted illegally in setting
H
RANGNATH SHARMA v. SATENDRA SHARMA 333
& ORS. [DR. MUKUNDAKAM SHARMA, J.]

aside the order of conviction passed by the Trial Court. It was A
also submitted that the High Court was not justified in holding
that the identity of the respondents as killers of the deceased
could not have been established in view of the fact that the
place of occurrence was not visible from the place where
Ranganath Sharma, PW? was allegedly standing. The learned s
counsel also submitted that the Division Bench of the High
Court erred in holding that it was not possible for PWs 4 to
7 to see the actual occurrence because of the distance where
they were allegedly standing at the time of occurrence,
particularly, in view of the fact that there were number of bushes, C
plants and cultivation standing on the field which would have
definitely hampered their view. Mr. Nagendra Rai, learned
senior counsel appearing for the respondents, however,
submitted that the judgment of the Division Bench of the High
Court is justified, legal and valid in the eyes of law as the
0
findings recorded by the High Court have been arrived at
after due appreciation of the record.
5. In the light of the aforesaid submissions and the
evidence on record, we proceed to appreciate the evidence
and also examine the reasons given by the High Court in E
acquitting the accused persons. While passing the order of
acquittal, the High Court has held that the place of occurrence
was at a considerable distance from the cabin of the informant
and also from the playground, and therefore, neither it was
possible for PWs 4, 5, 6 and 7 to hear the quarrel nor it was F
possible for them to see the occurrence from the place where
·~ they were stationed. The High Court also justified the order of
acquittal on the ground that there was considerable delay in
recording the first information report, and therefore, the case
of the prosecution becomes tainted. It was also held by the G
High Court that the presence of alcohol in the stomach of the
deceased coupled with ante mortem injuries on his penis
create a doubt in the prosecution case and that the occurrence
had taken place in some other manner and not in the manner
disclosed by the prosecution.
H
.:'

334 SUPREME COURT REPORTS [2008] 12 S.C.R.

'l'. ..,,
A 6. The prosecution has led evidence through the aforesaid
eye-witnesses, namely, PWs 4 to 7, which is sought to be
supported by the evidence of PWs 1 to 3. Rangnath Sharma ~
(PW-7) has stated in his deposition that the three accused,
came to his house and asked the deceased to accompany
B them. It is also stated by him that he prevented the deceased
from going with them but Satendra Sharma told that the
-1·
deceased would return soon. The aforesaid version of the t
informant was not at all challenged by the defense by putting
any direct question or otherwise in the cross examination. The .....

c only stand taken by defense was that the occurrence did not
take place in the manner it is alleged. There is no other evidence
available on record from which even a doubt with respect to
correctness of the said statement could be created.
7. Soon thereafter when Rangnath Sharma along with
D Sidhnath Sharma went to inspect his fields, he saw that two
of the accused persons, namely, Pankaj Sharma and
Ramakant Sharma, were holding the deceased and were y
grappling with him. H_aving seen the said situation, Rangnath
-+~
Sharma immediately learnt that some overt act is going to
E happen and he raised hulla. Immediately thereafter, he saw
that Satendra Sharma took pistol from his waist and fired at
the deceased and on receiving the bullet injury, the deceased
fell down on the ground. The said version of Rangnath Sharma
has been corroborated by Sidhanth Sharma in totality. The
F defense has challenged the aforesaid part of the statement of
Rangnath Sharma on the ground that the said incident as
~ '
alleged could not have been seen by the informant as he was
standing at a distance and there was obstruction by bushes,
plants and crops standing in the field. The aforesaid defense
found favour with the High Court. On going through the record,
G
we find that the place of occurrence was a terrace meaning
thereby that it was a little bit high land. As per the statement ~
of Anil Prasad Singh (PW 9), the officer in-charge, the height
of the terrace was about two feet. From the evidence it is
clearly proved and established that the place where the
H
RANGNATH SHARMA v. SATENDRA SHARMA 335
& ORS. [DR. MUKUNDAKAM SHARMA, J.]
~

" appellant had reached at the time of occurrence was not very
far from the place of occurrence. Therefore, it could not have
A

beeh said that the said place was not visible and accordingly
the High Court was not justified in arriving at the conclusion
that the said place where the occurrence took place could not
have been visible from the place where the informant was 8
~
stationed at the time of occurrence. PW-7 as also the other
1 witnesses have vividly described the manner in which the
occurrence had taken place. All the said witnesses were
examined at length during the trial by defense but on perusal
~
of the same no contradiction was found. c
8. Even otherwise if a person is well known to the other,
then the probability of identification of said person even from
a far away place is much higher. In the case of State of A.P.
v. Dr M. V Ramana Reddy, ((1991) 4 SCC 536] it was held
by th is Court that where the identity of the accused is well D
known to the eye-witness the same could be recognised even
"I
in the faint light.
~ 9. The action of the eye witnesses is corroborated by
the medical evidence. The doctor, PW-8 (Dr. Kapildeo Prasad},
conducted the post mortem examination and the injuries of E
the following nature were found on the body of the deceased:
"(1) Perforating wound of the size X inch in diameter
was found over right nipple. The margins of the wound
were irregular and inverted. The wound was directed F
posteriorly towar~s left side and was communicating
.Ji..
with an opening situated at the middle of the left
scapular region. The margins of the opening were
irregular and averted. On dissection right and left
lungs were found perforated. The left scapula bone
G
was found broken with the hole at its middle portion.
..;. Blood and clots were found in the thoracic cavity and
over the wound.
.J (II) Abrasion of size %" x X" was found over the lower
portion of the anterior surface of the penis". H
336 SUPREME COURT REPORTS [2008] 12 S.C.R.

A So far as the first injury is concerned it is clear that the 7: "*'
same was because of gun shot, which was established from
the medical evidence on record. So far as the second injury
is concerned, the defense tried to establish that the said injury
could not have been received by the deceased during the
B incident and in the manner as stated by the prosecution and
also that the doctor who conducted the post mortem ~
examination has stated in his report that alcohol was found in
the stomach of the deceased meaning thereby that the
deceased was intoxicated at the time of his death. That, ,.
)
c however, in no manner shakes the prosecution case nor any
doubt could be created, for a person could otherwise consume
alcohol during the course of the day. So far as the second
injury is concerned, it is true that the doctor has found abrasion
over lower portion of the interior surface of the penis. Such an
injury could have been received by the deceased during the
D
scuffle and grappling, which had taken place before the firing
of the pistol. But the fact remains that main injury received by
the deceased which was the cause of death, was received by 7

the gun shot injury received from the pistol, fired by Satendra +-
Sharma. ....
E
10. One of the contentions which was raised by the '
defense was that the the prosecution story cannot and should
not be believed as there was considerable delay in filing the
F.1.R., which creates doubt about the credibility of the Report.
F As per prosecution the incident took place between 5:30 -
6.00 P.M. and the informant along with two others left for the
Police Station, on foot, at about 6:30 P.M., which is near about
4 miles away from the place of occurrence and reached there
*
at about 8:30 P.M. As the report was not accepted immediately
he had to wait. Thus the time period between the incident and \
G
filling of F.l.R was satisfactorily explained.
11. The aforesaid evidence cleariy proves and ~
establishes that PWs 4 to 7 were near the place of occurrence
at the time of alleged occurrence and that they had seen the !,>

H accused Pankaj Sharma and Ramakant Sharma holding the
RANGNATH SHARMA v. SATENDRA SHARMA 337
& ORS. [DR. MUKUNDAKAM SHARMA, J.]
'.j. ~
deceased and Satendra Sharma firing at the deceased. PWs A
1 to 3 have also categorically stated that they heard the sound
of firearm and they immediately rushed to the place of
occurrence and saw the aforesaid three accused persons
fleeing towards the western side. Although there is evidence
to show that the place of occurrence was at a distance from B
1' the cabin of the informant and crops had inteNened in between
~ the playground and the place of occurrence but it has not
come on evidence that because of the high crops of jinora
and maize, eye witnesses could not have seen the occurrence
which had taken place at a terrace, which was comparatively c
raised land. None of them could be said to be a chance
witness and on reading the evidence we find that they were
natural witnesses who had seen the occurrence, heard the
sound of firearm and saw the accused- respondents fleeing
away from the place of occurrence. All the aforesaid evidence
D
confirm the fact that the deceased was taken away from his
house before the alleged occurrence by the accused persons
., and has been shot dead by Satendra Sharma .
_,f
12. The next question which arises for our consideration
is whether Pankaj Sharma and Ramakant Sharma can be E
held to be jointly liable for the above-mentioned offences.
Section 34 IPC has been enacted on the principle of joint
liability in the doing 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 F
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 who join
in committing the crime. Direct proof of common intention is
G
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
has to establish by evidence, whether direct or circumstantial,
H
338 SUPREME COURT REPORTS [2008] 12 S.C.R.

A that there Was plan or meeting of minds 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 the moment; but it must necessarily be before the
commission of the crime. The true concept of the section is
B 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. The existence of a common intention
amongst the participants in a crime is the essential element
for application of this section. It is not necessary that the acts
c of the seyeral 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 pervading amongst all
accused in order to attract the provision. Section 34 is
applicable even if no injury has been caused by the particular
0
accused himself. For applying Section 34 it is not necessary
to show some specific overt act on the part of the accused,
when it is shown that there was common intention and meeting
of mind.

E 13. In Ram Taha/ v. State of UP, [(1972) 1 SCC 136],
it has been laid down as under:-
"5 ................... There is no doubt that a common intention
should be anterior in time to the commission of the crime
showing a pre-arranged plan and prior concert, and
F though, it is difficult in most cases to prove the intention of
an individual it has to be inferred from the act or conduct
or other relevant circumstances of the case. This inference
can be gathered by the manner in which the accused
arrived on the scene and mounted the attack, the
G determination and concert with which the beating was given
or the injuries, caused by one or some of them, the acts
done by others to assist those causing the injuries the
con6erted conduct subsequent to the commission of the
offence for instance that all of them had left the scene of
H the incident together and other acts which all or some may
RANGNATH SHARMA v. SATENDRA SHARMA 339
& ORS. [DR. MUKUNDAKAM SHARMA, J.]
...c,,. , .
have done as would help in determining the common A
intention. In other words, the totality of the circumstances
must be taken into consideration in arriving at the
conclusion whether the accused had a common intention
to commit an offence with which they could be convicted.
This Court had in Krishna Govind Patil's case already B
)_ referred to earlier, held that the pre-arranged plan may
1 develop on the spot during the course of the commission
of the offence but the crucial circumstance is that the said
plan must precede the act constituting the offence. If that
be so before a court convict a person under Section 302 c
or 304, read with 34 of IPC, it should come to a definite
conclusion that the said person had a prior concert with
one or more persons named or un-named for committing
the offence.
We may also make a reference to a decision of this D
Court in Ramesh Singh v. State of A.P, [(2004) 11 SCC
....,
305], wherein it has been observed thus:

-t "12 ............... As a general principle in a case of criminal
liability it is the primary responsibility of the person who
actually commits the offence and only that person who E
has committed the crime can be held guilty. By introducing
Section 34 in the Penal Code the legislature laid down
the principle of joint liability in doing a criminal act. The
essence of that liability is to be found in the existence of
a common intention connecting the accused leading to F
~

~ the doing of a criminal act in furtherance of such intention.
Thus, if the act is the result of a common intention then
every person who did the criminal act with that common
intention would be responsible for the offence committed
irrespective of the share which he had in its perpetration. G
Section 34 IPC embodies the principle of joint liability in
~ doing the crimi_nal act based on a common intention.
Common intention essentially being a state of mind it is
very difficult to procure direct evidence to prove such
intention. Therefore,· in most cases it has to be inferred H
340 SUPREME COURT REPORTS [2008] 12 S.C.R.

A from the act like, the conduct of the accused or other '( ..::_

relevant circumstances of the case. The inference can be
gathered from the manner in which the accused arrived at
the scene and mounted the attack, the determination and
concert with which the attack was made, and from the
8 nature of injury caused by one or some of them. The
contributory acts of the persons who are not responsible
~-
for the injury can further be inferred from the subsequent ~

conduct after the attack. In this regard even an illegal
omission on the part of such accused can indicate the
c sharing of common intention. In other words, the totality of
circumstances must be taken into consideration in arriving
at the conclusion whether the accused had the common
intention to commit an offence of which they could be
convicted. (See Noor Mohammad Mohd. Yusuf Momin v.
State of Maharashtra (1970) 1 SCC 696 )."
D
So far as Pankaj Sharma and Ramakant Sharma are
concerned they were also instrumental in bringing the
r'
deceased from his house in the company of Satendra Sharma
to the place of occurrence with the common intention. As per +
E the F.l.R and in their depositions during trial PWs 4, 6 and 7
specifically mentioned that they saw the said two accused
holding the deceased which made it possible for Satendra
Sharma to fire gun shot injury on the deceased. In /srar v.
State of UP, [(2005) 9 sec 616], wherein one of us (Dr. Arijit
F Pasayat) was the member, it was held that a person who was
holding the deceased and restraining his movements, enabling
the co-accused to inflict the knife-blows causing the death of
the deceased was rightly convicted under Sectior:i 302 with
the aid of S. 34 IPC. Having thus independently considered
the facts and circumstances in their totality and taking holistic
G
view of the facts of this case, we are of the opinion that the
prosecution has been able to establish that Pankaj Sharma
~
and Ramakant Sharma shared a common intention with
accused Satendra Sharma and therefore, by virtue of section
34 IPC they are liable for the same offence.
H
RANGNATH SHARMA v. SATENDRA SHARMA ~41
& ORS. [DR. MUKUNDAKAM SHARMA, J.]

14. In the background of what has been stated above, A
we set aside the judgment of the Division Bench of the High
Court and restore the judgment of the Trial Court. The accused-
respondents shall surrender to custody to serve out the
remaining sentence, failing which appropriate steps be taken
for their arrest. There bail bonds stand cancelled. B
15. The appeals are, therefore, allowed.
B.B.B. Appeals allowed.

, -'lit

·+.