Holding

The Supreme Court upheld the High Court's order, holding that the roles of the three acquitted accused did not attract Section 34 IPC and that the appropriate conviction for the accused who inflicted the fatal blow is under Section 304(Part I) IPC.

Summary

The State of Punjab prosecuted four accused—Bakhshish Singh, Balbir Singh, Balraj Singh and Gurmeet Kaur—for the death of Mangal Singh. The prosecution alleged that the accused, after a quarrel, held the deceased while Balraj Singh delivered a single blow that caused fatal head injuries. The trial court convicted all four under Section 302 read with Section 34 of the IPC. The Punjab and Haryana High Court acquitted Bakhshish, Balbir and Gurmeet, holding that their participation did not attract Section 34, and altered Balraj's conviction to Section 304(Part I). On appeal, the Supreme Court examined the scope of Section 34 and the requirement of a common intention, concluding that the evidence did not establish a joint intention among the acquitted accused and that the High Court's alteration was justified. Consequently, the appeal was dismissed, leaving the convictions as ordered by the High Court.

Issues considered

Whether the acts of all four accused constitute a common intention under Section 34 IPC.
Whether the conviction of the accused who delivered the fatal blow should be under Section 302 IPC or Section 304(Part I) IPC.
Whether the High Court was correct in acquitting the three accused and altering the conviction of the fourth.

Legislation cited

Indian Penal Code, 1860s. 302, s. 304(Part I), s. 34

Subjects

Section 34 IPCcommon intentionjoint liabilitymurdercognizable homicideIndian Penal Codeappellate jurisdictioncriminal law

Judgment

[2008] 14 S.C.R. 742

A STATE OF PUNJAB
V.
BAKHSHISH SINGH & ORS.
(Criminal Appeal No. 1153 of 2002)
OCTOBER 17, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]

Penal Code, 1860:
C ss. 302134 and 304 (Part I) - Assault by four accused -
On exhortation of one accused, deceased held by two ac-
cused, and single blow of weapon inflicted by another accused
- Conviction of all the accused by trial court uls. 302134 - High
Court altering the conviction of the accused who had inflicted
o the injuries to one uls. 304(Part I) and acquitting others - On
appeal, held: High Court order is justified - In the facts of the
case, role of the acquitted accused do not attract s. 34 - In
· view of the fact that there was altercation between the parties, ..,...
)

conviction rightly altered to s. 304 (Part I).
E s. 34 - Common Intention - nature and applicability of -
Discussed.
Respondents-accused were prosecuted for the of-
fence punishable uls,. 302134 IPC. According to prosecu-
tion, all the four accused stood in the way of PWs 4 and 5
F and the deceased, while they were going to their home
from their field. On exortation of one accused that they ,..
should not escape as they had damaged their crop, two
accused took the deceased in their grip and threw him on
the ground and the fourth accused inflicted a 'Chhavi' blow
G on him, as a result of which, he died. Trial Court convicted
all the accused for the offences charged under. High Court
altered the conviction of the accused who had inflicted the ~
blow on the deceased, to one uls. 304 (Part I) IPC and ac-
quitted rest of the accused. Hence the present appeal.
H 742
STATE OF PUNJAB v. BAKHSHISH SINGH 743
& ORS.

Dismissing the appeal, the Court A
HELD: 1.1 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 liability of one person for an of-
fence committed by another in the course of criminal act B
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 seldom available and,
therefore, such intention can only be inferred from the c
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 circum-
stantial, that there was plan or meeting of mind of all the
0
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 be-
fore the commission of 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 E
each of them has done it individually by himself. [Para 5]
[747, G-H; 748,A-C]
1.2 Section 34 does not say "the common intention
of all", nor does it say "and intention common to all".
Under the provisions of Section 34, the essence of the F
liability is to be found in the existence of a common inten-
tion animating the accused leading to the doing of a crimi-
nal act in furtherance of such intention. As a result of the
application of principles enunciated in Section 34, when
an accused is convicted under Section 302 read with Sec- G
tion 34, in law it means that the accused is liable for the
act which caused death of the deceased in the same man-
ner as if it was done by him alone. The provision is in-
tended to meet a case in which it may be difficult to distin-
guish between acts of individual members of a party who H
744 SUPREME COURT REPORTS [2008] 14 S.C.R.

A act in furtherance of the common intention of all or to ...r
I

prove exactly what part was taken by each of them. Sec-
tion 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
8 the accused. The High Court analysed the evidence of
PWs 4 and 5 to come to the conclusion that the role of the
acquitted accused persons do not really attract Section
34 IPC. [Paras 8 and 10] [748,G-H; 749,A-C; 749,E]
Ashok Kumar v. State of Punjab AIR 1977 SC 109; Ch.
c Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR 1993
SC 1899; Anil Sharma and Others v. State of Jharkhand 2004
(5) SCC 679; Harbans Kaur v. State of Haryana 2005(9) SCC
195; Amit Singh Bhikamsingh Thakur v. State of Maharashtra
2007(2) sec 310 - relied on
D Mahbub Shah v. Emperor AIR 1945 Privy Council 118
- referred to
2. Though in all cases it cannot be said that when only y
a single blow is given, Section 302 IPC is made out, yet it
would depend upon the factual scenario of each case;
E more particularly the nature of the offence, the background
facts, the part of the body where the injury is inflicted and
the circumstances in which the assault is made. In the in-
stant case prosecution version itself shows that there were
altercations. In that view of the matter, the High Court was
F justified in altering the conviction from Section 302 to Sec-
tion 304(Part I) IPC. [Paras 10 and 11] [749,E-G] y
CASE LAW REFERENCE
AIR 1977 SC 109 Relied on Para 5
G AIR 1945 Privy Council 118 Referred to Para 7
AIR 1993 SC 1899 Relied on Para 8
2004 (5) sec 679 Relied on Para 9
2005(9) sec 195 Relied on Para 9
H 2001(2) sec 310 Relied on Para 9
STATE OF PUNJAB v. BAKHSHISH SINGH 745
& ORS.

T·• CRIMINALAPPELLATE JURISDICTION: Criminal Appeal A
No. 1153 of 2002
From the final Judgment dated 20.8.2001 of the High Court
of Punjab and Haryana at Chandigarh in Crl. Appeal No. 117-
DB of 1998
B
Ajay Pal for the Appellant.
K.B. Sinha, Kawaljit Kochar and Kusum Chaudhary for the
,,)..--
Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to c
the judgment of a Division Bench of the Punjab and Haryana
High Court directing acquittal of respondents Bakhshish Singh,
Balraj Singh and Gurmeet Kaur while altering the conviction of
respondent Balbir Singh from one under Section 302 of the In-
dian Penal Code, 1860 (in short the 'IPC') to one under Section D
304 Part I IPC. Learned Additional Sessions Judge Gurdaspur,
I had convicted each of the respondents for offence punishable
y under Section 302 read with Section 34 IPC.
2. Prosecution version as unfolded during trial is as follows:
E
Agricultural lands of Kabul Singh (PW4) and that of Mangal
Singh (hereinafter referred to as the 'deceased'), his nephew,
and that of respondent-Bakhshish Singh and others adjoin each
other and are located in the same vicinity in village Bhoa and
fall within the jurisdiction of Police Station Sadar, Pathankot,
District Gurdaspur. The land of Darshan Singh is also located F
y nearby. About one week before the occurrence Darshan Singh
was irrigating his land with canal water. The canal water over-
flowed through the Khal including the fields of Kabul Singh PW4
and entered into the fields of accused Bakhshish Singh wherein
wLeat crops were sown. Though this canal water had come, G
perhaps, from the field of Darshan Singh to the fields of the ap-
pellants but the accused were feeling that the canal water had
come through the fields of deceased Mangal Singh. So, it was
in this wake that on 1.5.1994, around 9.00 A.M. while Kabul
Singh PW4 and his nephew deceased Mangal Singh were re- H
746 SUPREME COURT REPORTS [2008] 14 S.C.R.

_,./
A turning from the fields along with Swinder Kaur (PW5), mother
of Mangal Singh, the accused persons, namely, Bakhshish
Singh and Balbir Singh armed with a dang each, Balraj Singh
armed with Chhavi were found standing on the pucca culvert on
the metalled road near the house of accused Bakhshish Singh.
B Gurmeet Kaur raised a lalkara saying that Kabul Singh and
Mangal Singh should not be allowed to escape as they had dam-
aged their crops. Bakhshish Singh and Balbir Singh took Mangal
~r
Singh in their grip and threw him on the ground while accused
Balraj Singh at the instigation of his mother Gurmeet kaur in-
flicted a Chhavi blow on the head of Mangal Singh and it is only
c when the close relations of the deceased prayed for sparing the
life of Mangal Singh, the accused persons ran away from the
scene of occurrence. Mangal Singh was removed to Civil Hospi-
tal, Pathankot from where he was referred to C.M.C. Ludhiana.
The aforesaid Mangal Singh breathed his last due to inju-
D
ries on the way of Ludhiana. The dead body was brought to Civil
Hospital, Pathankot. The statement Ex. PJ of Kabul Singh was
recorded by SI Jarnail Singh PW8 at 7.30 P.M. on 1.5.1994 and y
on its basis formal F.l.R. Ex. PJ/2 was recorded at 7.55/8.55 P.M.
on 1.5.1994. The special report reached the learned llaga Mag-
I,
E istrate at 5.05 A.M. on 2.5.1994. Thereafter SI Jarnail Singh
(PW8) went to Civil Hospital, Pathankot and prepared inquest
report Ex.PL and sent the dead body for. postmortem. On
2.5.1994, the Investigating Officer went to the scene of occur-
rence and prepared rough site plan Ex.PO with marginal notes.
F He took into possession five copies of sale deeds produced by
Kabul Singh vide memo Ex.PK. Accused Balbir Singh, Bakhshish y
Singh and Balraj Singh were arrested on 5.5.1994. In pursuance
of his disclosure statement on Ex.PP, accused Balraj Singh got
recovered Gandasi Ex. P1 which was taken into possession vide
memo Ex.PR. Accused Gurmeet Kaur was also arrested.
G
Dr. Sun ii Ghai (PW2) conducted autopsy on the dead body ~I
of deceased Mangal Singh on 2.5.1994 and found the follow- ~
.._ ,,;.'?-
ing injury:-
Lacerated wound 2 cm x 0.5. cm stitched present on the
H middle of the head approximately 2 cm. Left to the mid line. On
STATE OF PUNJAB v. BAKHSHISH SINGH 747
& ORS.

~--
I
dissection, underlying parietal bone was fractured. SIC tissue A
was lacerated and there was extradural and sub dural
haematoma present. Brain tissue underlying was lacerated.
In the opinion of the doctor, the cause of death was due to
the injuries to the vital organ brain caused by injury No.1. The
injuries were ante mortem in nature and sufficient to cause death B
in the ordinary course of nature. Ex. P.C. is the copy of the post
'"'Jr mortem report.
After completion of investigation, charge sheet was filed
and since the accused persons pleaded innocence, trial was
held. The trial court placed reliance on the evidence of PW 4, c
the complainant, PW 5 who claimed to be an eye witness to
hold the accused persons guilty:
In appeal the basic stand of the accused persons was that
there was absolutely no evidence so far as accused Bakhshish,
D
Balbir and Gurmeet are concerned. So far as Gurmeet is con-
cerned it is stated that she is stated to have only raised a lalkara
·-( and that so far as accused Bakhshish and Balbir are concerned
they are supposed to have held the accused in their grip while
accused Balraj inflicted a single blow. The stand of the prosecu-
tion was that by application of Section 34 IPC each one of them E
had been rightly found guilty. The High Court found that the evi-
dence did not establish the roles purportedly played by Gurmeet,
Balbir and Bakhshish. It also noted that only a single blow was
given by Balraj and that too in course of a sudden quarrel. Ac-
cordingly as noted above Gurmeet, Balbir and Bakhshish were F
acquitted while the conviction of Balraj was confirmed.
~
3. In support of the appeal learned counsel for the appel-
lant submitted that the High Court ought to have held that Sec-
tion 34 has full application to the facts of the case. It should not
have altered conviction so far as accused Balbir is concerned. G

.- 4. Learned counsel for the respondents on the other hand
supported the judgment of the High Court.
5. Section 34 has been enacted on the principle of joint
liability in the doing of a criminal act. The Section is only a rule H
748 SUPREME COURT REPORTS [2008] 14 S.C.R.

A of evidence and does not create a substantive offence. The dis-
..._,_..
tinctive 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 per-
sons arises under Section 34 if such criminal act is done in fur-
therance of a common intention of the persons who join in com-
B
mitting the crime. Direct proof of common intention is seldom
available and, therefore, such intention can only be inferred from
--J.
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,
c 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 com-
mission of the crime. The true contents of the Section are that if
tWo or more persons intentionally do an act jointly, the position in
D 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 't
participants in a crime is the essential element for application of
this Section. It is not necessary that the acts of the several per-
E sons charged with commission of an offence jointly must be the
same or identically similar. The acts may be different in charac-
ter, but must have been actuated by one and the same common
intention in order to attract the provision.
6. As it originally stood, Section 34 was in the following terms:
F "When a criminal act is done by several persons, each of
such persons is liable for that act in the same manner as )
if the act was done by him alone."
7. In 1870, it was amended by the insertion of the words
"in furtherance of the common intention of all" after the word
G "persons" and before the word "each", so as to make the object I
of Section 34 clear. This position was noted in Mahbub Shah
v. Emperor (AIR 1945 Privy Council 118).
1'
8. The Section does not say "the common intention of all",
nor does it say "and intention common to all". Under the provi-
H sions of Section 34 the essence of the liability is to be found in
STATE OF PUNJAB v. BAKHSHISH SINGH 749
& ORS.

the existence of a common intention animating the accused A
leading to the doing of a criminal act in furtherance of such in-
tention. As a result of the application of 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 8
manner as if it was done by him alone. The provision is intended
to meet a case in which it may be difficult to distinguish be-
tween acts of individual members of a party who act in further-
ance 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), Sec- C
tion 34 is applicable even if no injury has been caused by the
particular accused himself. For applying Section 34 it is not nec-
essary to show some overt act on the part of the accused.
9. The above position was highlighted recently in Anil
0
Sharma and Others v. State of Jharkhand [2004 (5) SCC 679],
in Harbans Kaur v. State of Haryana [2005(9) SCC 195] and
Amit Singh Bhikamsingh Thakur v. State of Maharashtra
[2007(2) sec 310].
10. The High Court analysed the evidence of PWs 4 & 5 E
to come to the conclusion that the role of the acquitted accused
persons do not really attract Section 34 IPC. So far as alter-
ation of conviction is concerned though in all cases it cannot be
said that when only a single blow is given Section 302 IPC is
made out yet it would depend upon the factual scenario of each
case; more particularly the nature of the offence, the background F
facts, the part of the body where the injury is inflicted and the
circumstances in which the assault is made.
11. In the instant case prosecution version itself shows that
there were altercations. In that view of the matter the High Court
was justified in altering the conviction from Section 302 to Sec- G
tion 304-1 IPC.
12. We find no merit in this appeal, which is accordingly
dismissed.

K.K.T. Appeal dismissed. H