CHHOTA AHIRWAR versus THE STATE OF MADHYA PRADESH on 6 February 2020

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[2020] 3 S.C.R. 776

SUPREME COURT REPORTS

[2020] 3 S.C.R.

ACHHOTA AHIRWAR

v.

THE STATE OF MADHYA PRADESH

(Criminal Appeal No. 238 of 2011)

BFEBRUARY 06, 2020

[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]

Penal Code, 1860: ss.307/34 – Attempt to murder withcommon intent – Applicability of s.34 – Prosecution case was thatPW-3-complainant, the accused appellant and the main accusedCwere related to each other – There was previous enmity betweenthem over land dispute – On the fateful day, when PW-3 was on hisway, he was stopped by accused appellant and told not to cultivatehis land – Quarrel started between PW-3 and accused appellant –The main accused also came and intervened, whereupon PW-3 toldDhim, not to interfere and to go home, as he was in no way concernedwith the dispute – Thereafter, the main accused took out a pistolfrom the right pocket of his pants and pointed it at him – PW-3 toldthe main accused not to open fire, whereupon the accused appellanturged the main accused to kill PW-3 – Thereafter, the main accusedfired the pistol, causing injury to PW-3 with the splinters – TrialEcourt convicted the accused appellant under ss. 307/34 and mainaccused under s.307 – High Court upheld the same – On appeal,held: To attract s.34, no overt act is needed on the part of the accusedif they share common intention with others in respect of the ultimatecriminal act, which may be done by any one of the accused sharingFsuch intention – Common intention implies acting in concert –Existence of a prearranged plan has to be proved either from theconduct of the accused, or from circumstances or from anyincriminating facts – Prosecution was not able to establish a pre-arranged common intention between the accused appellant and themain accused to kill PW-3 in pursuance of which the main accusedGopen fired from his pistol – The circumstances established suggestedthat intervention by the main accused was by chance – There weresome notable discrepancies between the evidence of PW-3 andPW-4 which raised serious doubts with regard to the truth and/oraccuracy of their evidence particularly in view of the enmity andH

pre-existing family disputes between the parties – Prosecutionmiserably failed to establish any common, premeditated orprearranged intention jointly of the accused appellant and the mainaccused to kill PW-3, on the spot or otherwise – Prosecution alsofailed to prove that the pistol was fired at the exhortation of theaccused appellant – Trial court and High Court both fell in error inconvicting the accused appellant – Accused appellant entitled toacquittal.

Penal Code, 1860: s.34 – Common intention – It is a settledprinciple of criminal law that only the person who actually commitsthe offence can be held guilty and sentenced in accordance withlaw – However, s.34 lays down a principle of joint liability in acriminal act, the essence of which is to be found in the existence ofcommon intention, instigating the main accused to do the criminalact, in furtherance of such intention – Even when separate acts aredone by two or more persons in furtherance of a common intention,each person is liable for the result of all the acts as if all the actshad been done by all of these persons.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

Held: 1. It is not in dispute that the accused appellantneither carried arms nor opened fire. In cross-examinationPW-3 admitted that he had not in his statement to the police underSection 161, Cr.PC stated anything about any instigation by theaccused appellant to the main accused. The Sessions Courtoverlooked certain serious discrepancies between the evidenceof PW-4 and the evidence of PW-3 with regard to the alleged roleof the accused appellant. While PW-3, himself the injured witness,deposed that the accused appellant exhorted the main accusedto kill him, after the main accused had pointed the pistol at PW-3,PW-4 had deposed that on being told by the accused appellant tobeat PW-3, the main accused took out the pistol from the rightpocket of his pant and fired. [Paras 16, 17][784 A-F]

2.1 It is a settled principle of criminal law that only theperson who actually commits the offence can be held guilty andsentenced in accordance with law. However, Section 34 lays downa principle of joint liability in a criminal act, the essence of which AB

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Ais to be found in the existence of common intention, instigatingthe main accused to do the criminal act, in furtherance of suchintention. Section 34 is only a rule of evidence which attracts theprinciple of joint criminal liability and does not create any distinct,substantive offence. [Paras 21, 22][785 D-F]

BB.N. Srikantiah v. Siddiah AIR 1958 SC 672 : [1959]SCR 496; Bharwad Mepa Dana and Anr. v. State ofBombay AIR 1960 SC 289 : [1960] 2 SCR 172;Harbans Kaur and Another v. State of Haryana (2005)9 SCC 195 : [2005] 2 SCR 450 – relied on.

C2.2 Common intention can only be inferred from provedfacts and circumstances. Of course, the common intention candevelop during the course of an occurrence. The essence ofliability under Section 34 is simultaneous consensus of the mindsof persons participating in the criminal act to bring about aparticular result, which consensus can even be developed at theDspot. Common intention implies acting in concert. Existence of aprearranged plan has to be proved either from the conduct of theaccused, or from circumstances or from any incriminating facts.It is not enough to have the same intention independently of eachother. [Paras 23-24, 27][785-G-H; 786 B-C, G-H]

EManik Das & Ors. v. State of Assam AIR 2007 SC2274 : [2007] 7 SCR 863; Abdul Mannan v. State ofAssam (2010) 3 SCC 381 : [2010] 2 SCR 1030; LallanRai & Ors. v. State of Bihar (2003) 1 SCC 268 : [2002]4 Suppl. SCR 188; Ashok Basho (2010) SCC 660 (669);FBarendra Kumar Ghosh AIR 1925 Privy Council 1 –relied on.

3. The Prosecution was not able to establish a pre-arrangedcommon intention between the accused appellant and the mainaccused to kill the complainant in pursuance of which the accusedGopen fired from his pistol. The circumstances established suggestthat intervention by the main accused was by chance. The mainaccused chanced to stop as he was passing by the place ofoccurrence when the accused appellant and the complainant werequarrelling. As per the evidence of the complainant, who is a H

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injured witness, when the complainant told the main accused notto intervene and to go home, reacted by taking out the pistolfrom his right pant pocket and pointing it at the complainant. Thepistol was taken out by the main accused and pointed atcomplainant without any instigation from the accused appellant.Even if it is accepted that the accused appellant uttered the wordsattributed to him by the complainant (PW-3) in his evidence, thisseems to have been done on the spur of the moment.Pre-arrangement is not established. There are some notablediscrepancies between the evidence of the complainant (PW-3)and PW-4 which raise serious doubts with regard to the truthand/or accuracy of their evidence particularly in view of the enmityand pre-existing family disputes between the parties. Even thoughPW-5 may have been declared hostile, his evidence is not to berejected with in its entirely. This witness also confirmed that therewas an altercation between the accused appellant and thecomplainant, in which the main accused intervened, took out hispistol and aimed it at the complainant. These facts arecorroborated by PW-3 and PW-4. This witness however statedthat the main accused took out his pistol and threatened to killthe complainant. He did not say that the accused appellant urgedthe main accused to shoot. [Para 28][787 A-H; 788 A-B]

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4. Even though there may be some evidence that the mainaccused took out a pistol and opened fire, the prosecutionmiserably failed to establish any common, premeditated orprearranged intention jointly of the accused appellant and themain accused to kill the complainant, on the spot or otherwise.The Prosecution also failed to prove that the pistol was fired atthe exhortation of the accused appellant. The accused appellantis acquitted and directed to be set free forthwith. [Paras 29-30][788 B-C; D-E]

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Case Law Reference

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[2020] 3 S.C.R.

BCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.238 of 2011.

From the Judgment and Order dated 05.11.2008 of the High Courtof Madhya Pradesh at Jabalpur in Criminal Appeal No. 1050 of 1994.

Saurabh Mishra and P. V. Yogeswaran, Advs. for the Appellant.C

Rahuk Kaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi SatyapriyaSatyam and Rahul Khatri, Advs. for the Respondent.

The Judgment of the Court was delivered by INDIRA BANERJEE, J.D

1. This appeal is against a judgment and order dated 5[th] November,2008 passed by the High Court of Madhya Pradesh at Jabalpur, dismissingCriminal Appeal No.1050 of 1994 filed by the appellant, and upholdingthe judgment dated 26[th] August, 1994 passed by the Additional SessionsJudge, District Panna, Madhya Pradesh in Sessions Case No. 13/1993,Einter alia, convicting the accused appellant of offence under Section307 read with Section 34 of the Indian Penal Code.

2. The accused appellant was tried by the Sessions Court, oncharges under Section 307/34 of the Indian Penal Code, for attempt,with common intent along with the main accused Khilai, to murder theFcomplainant and for instigating the said accused Khilai to fire at thecomplainant with a country made pistol, in furtherance of a commonintent to kill the complainant.

3. In a nutshell, the case of the Prosecution is that, on 22[nd] October,1992 at about 11.00 a.m., there was a quarrel between the accusedGappellant and the complainant, in which the said accused Khilai intervened.The said accused Khilai who had joined the accused appellant and thecomplainant, took out a country made pistol from the pocket of histrousers, pointed it towards the complainant and fired at the instigationof the accused appellant, who urged the said accused Khilai to kill the H

complainant. The complainant, therefore, sustained injuries on hisforehead near his eye and on his lips and shoulder with splinters fromthe pistol and started bleeding. It is the further case of the Prosecution,that after the firing, the accused Khilai fled the scene of occurrence andthe accused appellant followed him. Immediately thereafter, thecomplainant reported the incident at the Mohandra Chowki. The reportwas forwarded to the Simariya Police station where Crime No.110/1992was registered.

4. After investigation, Chargesheet was filed against the accusedappellant and the main accused Khilai, both of whom pleaded ‘Not Guilty”and claimed to be tried. To establish the charges framed against theaccused, the Prosecution examined 11 witnesses. The accused appellantdid not examine any witness nor did the main accused, Khilai.

5. By a judgment dated 26[th] August, 1994, the Additional SessionsJudge, Panna held the accused appellant guilty of offence under Section307/34 of the Indian Penal Code and the main accused Khilai guilty ofoffence under Section 307 of the Indian Penal Code. By an order ofsentence passed on the same day the accused appellant was sentencedto undergo rigorous imprisonment for five years in addition to fine ofRs.1000/-.

6. Being aggrieved by the aforesaid judgment of conviction andorder of sentence, the accused appellant appealed to the High Court.The said appeal being Criminal Appeal No. 1050 of 1994 has beendismissed by the judgment and order impugned in this appeal.

7. The accused appellant, the main accused, Khilai, and thecomplainant were all related. Sunder Lal, father of the main accusedKhilai and uncle of the complainant, had given his share of land to theaccused appellant for cultivation. There were land disputes betweenmembers of the family and in particular between the complainant andthe accused appellant.

8. Of the eleven witnesses examined by the Prosecution, the firstProsecution Witnesses (PW-1) only gave evidence of preparation of asketch map at the place of occurrence and the second ProsecutionWitness (PW-2) testified to the receipt of case records in the office ofthe District Magistrate. The Sixth Prosecution Witness (PW-6) onlywitnessed the preparation of the site map of the place of occurrence,recovery of an iron splinter and some blood stained clothes and articles.

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AThree witnesses, that is, the 5[th], 9[th] and 10[th] witnesses (PW-5, PW-9,PW-10) did not support the case made out by the Prosecution and weredeclared hostile. The ninth and tenth Prosecution Witnesses who wereproduced to testify to the confession allegedly made by the main accusedKhilai in their presence, leading to recovery of the weapon, categoricallydenied their presence at the time of recovery of the pistol and wereBdeclared hostile. They also denied that the main accused Khilai hadmade any confession. The 11[th] Prosecution Witness (PW-11) only testifiedto the arrest of the accused appellant. The evidence of these witnessesis of no relevance to the guilt of the accused appellant.

9. The 8[th] Prosecution Witness (PW-8) who had been working asCAssistant Surgeon at the Primary Health Centre, Mohandra describedthe wounds found on the body of the complainant and opined that theinjuries were caused by splinters from a firearm. In cross examinationhe said that no splinters were found from the injury during examination.The evidence of this witness suggests that the injuries could have beenDcaused by firing a pistol. He ruled out the possibility of the injury havingbeen caused as a consequence of explosion of stone. At the highest, theevidence of PW-8 establishes that a pistol was fired, as a result of whichthe complainant sustained injuries. The possibility of the injuries beingsustained while cleaning the pistol was not ruled out by this witness.This witness has also not said anything relevant to the guilt of the accusedEappellant.

10. The 7[th] Prosecution Witness (PW-7) was the InvestigatingOfficer, who deposed that he had sent the report of the incident to theSimaria Police Station on the basis of which criminal case No.110/1992under Section 307/34 of the Indian Penal Code had been registered andFhad examined the complainant, Prem Shankar Kateha (PW-4), SabbuChourasia and Bharat and had seized blood stained clothes, articles etc.from the place of occurrence.

11. There is nothing in the evidence of PW-1, PW-2, PW-5, PW-6, PW-7, PW-8, PW-9, PW-10 and PW-11 to establish the guilt of theGaccused appellant. The complainant, a cousin of the main accused Khilai,and an injured witness deposed as the 3[rd] Prosecution Witness (PW-3).PW-3 stated that on 22[nd] October, 1992, at about 11.00 O’Clock, whenhe was going to Khareja from his house, the accused appellant stoppedhim on the way and told him not to cultivate his land. The main accusedHKhilai also came and intervened, whereupon the complainant told the main accused Khilai, not to interfere and to go home, as he was in noway concerned with the dispute between the complainant (PW-3) andthe accused appellant.

12. The complainant (PW-3) deposed that on being told to gohome, the main accused Khilai took out a pistol from the right pocket ofhis pants and pointed it at him. The complainant (PW-3) told the mainaccused Khilai not to open fire, whereupon the accused appellant urgedthe main accused Khilai to kill the complainant (PW-3). Thereafter, themain accused, Khilai fired the pistol, causing injury to the complainantwith the splinters. The complainant (PW-3) further stated that the incidenttook place in the presence of Prem Shankar Kateha who desposed asthe fourth witness for the Prosecution (PW-4) who was there at theplace of occurrence and also in the presence of Sabbu Chourasia whohad been selling oil and Bharat Kateha who had been helping in arrangingthe cans of oil.

13. According to the complainant (PW-3), the aforesaid threepersons, Prem Shankar Kateha (PW-4), Sabbu Chourasia and BharatKateha challenged the main accused Khilai, whereupon Khilai fledtowards the bus stand and the accused appellant followed him running.

14. From the evidence of the complainant (PW-3), it transpiresthat when heated arguments were going on and the complainant (PW-3)urged the main accused not to interfere as he was in no way concerned,the main accused Khilai took out a pistol from the pocket of his trousersand pointed it towards the complainant (PW-3). When the complainant(PW-3) told the main accused Khilai not to fire, the accused appellantexhorted the accused Khilai to kill the complainant. The complainant(PW-3) said that the main accused Khilai, thereafter, fired at him.

15. The evidence of the complainant (PW-3) indicates theexistence of serious disputes between the appellant and the accused,and/or the immediate members of their respective families. In his cross-examination the complainant (PW-3) admitted that one year before theincident his uncle Sunder Lal, that is, father of the main accused Khilai,had filed an application against the complainant (PW-3) and his fatherAsha Ram at Tehsil office, Pawai regarding the land in dispute. Thecomplainant (PW-3) deposed that at the time of the incident his uncleSunder Lal had given his share to the accused appellant on ‘Batai’ forcultivation. He stated that the share of his uncle Sunder Lal, which was A

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Agiven to the accused appellant on ‘Batai’, was adjacent to his share ofland. The complainant (PW-3) also admitted in cross-examination thaton the basis of a report filed by the main accused, Khilai, and his fatherSunder Lal, a case has been registered under the complainant (PW-3)and his younger brother Buttu in the court of Judicial Magistrate, Pawaiunder Sections 379 and 447 of the Indian Penal Code. The case wasBfiled before the incident. The complainant (PW-3) also admitted thatthere were several other cases between the complainant (PW-3) and/ormembers of his immediate and the accused appellant as also membersof the accused appellant’s family which were still pending at the time ofthe incident.C

16. It is not in dispute that the accused appellant neither carriedarms nor opened fire. The accused appellant is alleged to have instigatedthe opening of fire. In cross-examination the complainant (PW-3) admittedthat he had not in his statement to the police under Section 161 of theCr.PC stated anything about any instigation by the accused appellant toDthe main accused Khilai.

17. The Sessions Court has apparently proceeded on the basisthat PW-4, eye witness to the incident had corroborated the evidence ofthe complainant (PW-3). The Sessions Court however overlooked certainserious discrepancies between the evidence of PW-4 and the evidenceEof the complainant (PW-3) with regard to the alleged role of the accusedappellant. While the complainant (PW-3), himself the injured witness,has deposed that the accused appellant exhorted the main accused Khilaito kill him, after the main accused Khilai had pointed the pistol at thecomplainant (PW-3), PW-4 had deposed that on being told by the accusedappellant to beat the complainant (PW-3), the main accused Khilai tookFout the pistol from the right pocket of his pant and fired.

18. From the evidence of PW-4 it also transpires that the accused-appellant and the complainant (PW-3) were quarrelling over a land relateddispute. The accused appellant asked the complainant (PW-3) not to goto the field, whereupon the complainant retorted that the land belongedGto his grandparents, and that no one could stop him from going there.The heated quarrel, with raised voices, attracted attention and about 50/60 villagers gathered at the place of occurrence. The main accused,Khilai, who was cycling by the place of occurrence, stopped and askedthe complainant, PW-3 why he was going to the field whereupon theHaccused appellant told the main accused Khilai that the complainant would not easily give up and urged the main accused to beat him. At thispoint, the main accused Khilai took out the pistol from his pocket.

19. PW-5, who was declared hostile has confirmed that therewas an altercation between the complainant and the accused appellant.According to this appellant, the main accused Khilai came andintervened. The main accused Khilai hurled abuses at the complainant,took out his pistol from his pocket and threatened to kill the complainantif he went to the field. Thereafter the main accused went to the back ofthe house, after which the sound of firing was heard. PW-5 did not saythat the accused appellant instigated the main accused Khilai to shoot.

20. It is not in dispute that the accused appellant did not open fire.The Prosecution has alleged that it was the main accused Khilai whohad fired from his pistol and injured the complainant. The question iswhether, having regard to the facts established by the Prosecution, theappellant could have been held guilty of offence under Section 307 byinvocation of Section 34 of the Indian Penal Code.

21. It is a settled principle of criminal law that only the personwho actually commits the offence can be held guilty and sentenced inaccordance with law. However, Section 34 lays down a principle of jointliability in a criminal act, the essence of which is to be found in theexistence of common intention, instigating the main accused to do thecriminal act, in furtherance of such intention. Even when separate actsare done by two or more persons in furtherance of a common intention,each person is liable for the result of all the acts as if all the acts hadbeen done by all of these persons.

22. Section 34 is only a rule of evidence which attracts the principleof joint criminal liability and does not create any distinct, substantiveoffence as held by this Court in B.N. Srikantiah vs. Siddiah reportedin AIR 1958 SC 672; Bharwad Mepa Dana and Anr. Vs. State ofBombay reported in AIR 1960 SC 289 and other similar cases. Toquote Arijit Pasayat, J. in Harbans Kaur and Another vs. State ofHaryana reported in (2005) 9 SCC 195; the distinctive feature ofSection 34 is the element of participation in action.

23. Common intention can only be inferred from proved facts andcircumstances as held by this Court in Manik Das & Ors. vs. State ofAssam reported in AIR 2007 SC 2274. Of course, as held in AbdulMannan vs. State of Assam reported in (2010) 3 SCC 381, the commonintention can develop during the course of an occurrence.

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A24. Section 34 is only attracted when a specific criminal act isdone by several persons in furtherance of the common intention of all, inwhich case all the offenders are liable for that criminal act in the samemanner as the principal offender as if the act were done by all theoffenders. This Section does not whittle down the liability of the principaloffender committing the principal act but additionally makes all otherBoffenders liable. The essence of liability under Section 34 is simultaneousconsensus of the minds of persons participating in the criminal act tobring about a particular result, which consensus can even be developedat the spot as held in Lallan Rai & Ors. vs. State of Bihar reported in(2003) 1 SCC 268. There must be a common intention to commit theCparticular offence. To constitute common intention, it is absolutelynecessary that the intention of each one of the accused should be knownto the rest of the accused.

25. Mere participation in crime with others is not sufficient toattribute common intention. The question is whether, having regard toDthe facts and circumstances of this case, it can be held that the Prosecutionestablished that there was a common intention between the accusedappellant and the main accused Khilai to kill the complainant. In otherwords, the Prosecution is required to prove a premeditated intention ofboth the accused appellant and the main accused Khilai, to kill thecomplainant, of which both the accused appellant and the main accusedEKhilai were aware. Section 34 of the Indian Penal Code, is really intendedto meet a case in which it is difficult to distinguish between the acts ofindividual members of a party and prove exactly what part was playedby each of them.

26. To attract Section 34 of the Indian Penal Code, no overt act isFneeded on the part of the accused if they share common intention withothers in respect of the ultimate criminal act, which may be done by anyone of the accused sharing such intention [see Ashok Basho (2010)SCC 660 (669)]. To quote from the judgment of the Privy Council inthe famous case of Barendra Kumar Ghosh reported in AIR 1925GPrivy Council 1, “they also serve who stand and wait”.

27. Common intention implies acting in concert. Existence of aprearranged plan has to be proved either from the conduct of the accused,or from circumstances or from any incriminating facts. It is not enoughto have the same intention independently of each other.

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28. The question in this case is, whether the Prosecution has beenable to establish a pre-arranged common intention between the accusedappellant and the main accused Khilai to kill the complainant in pursuanceof which the accused Khilai open fired from his pistol. The answer tothe aforesaid question has to be in the negative for the following reasons:

(i) A quarrel broke out between the accused appellant and thecomplainant. When the accused appellant tried to prevent the complainantfrom going to the field, the complainant insisted on doing so. While thequarrel was going on, the main accused Khilai arrived at the spot andintervened whereupon the complainant told him off, saying he should gohome as he was in no way concerned with the dispute. At this, the mainaccused Khilai brought out a pistol from his right pant pocket and aimedit at the complainant.

(ii) There is no evidence to establish any pre-arrangement toconverge at the place of occurrence. The circumstances establishedsuggest that intervention by the main accused Khilai was by chance.The main accused Khilai chanced to stop as he was passing by theplace of occurrence when the accused appellant and the complainantwere quarrelling.

(iii) As per the evidence of the complainant, who is a injuredwitness, when the complainant told the main accused Khilai not tointervene and to go home, Khilai reacted by taking out the pistol fromhis right pant pocket and pointing it at the complainant. The pistol wastaken out by the main accused and pointed at Khilai, without anyinstigation from the accused appellant.

(iv) Even if it is accepted that the accused appellant uttered thewords attributed to him by the complainant (PW-3) in his evidence, thisseems to have been done on the spur of the moment. Pre-arrangementis not established.

(v) As observed above, there are some notable discrepanciesbetween the evidence of the complainant (PW-3) and PW-4 which raiseserious doubts with regard to the truth and/or accuracy of their evidenceparticularly in view of the enmity and pre-existing family disputes betweenthe parties.

(vi) Even though PW-5 may have been declared hostile, hisevidence is not to be rejected with in its entirely. This witness alsoconfirmed that there was an altercation between the accused appellant A

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Aand the complainant, in which the main accused Khilai intervened, tookout his pistol and aimed it at the complainant. These facts are corroboratedby PW-3 (the Complainant) and PW-4. This witness however statedthat the main accused Khilai took out his pistol and threatened to kill thecomplainant. He did not say that the accused appellant urged the mainaccused, Khilai to shoot.B

29. Even though there may be some evidence that the main accusedtook out a pistol and opened fire, the Prosecution has miserably failed toestablish any common, premeditated or prearranged intention jointly ofthe accused appellant and the main accused Khilai to kill the complainant,on the spot or otherwise. The Prosecution has also failed to prove thatCthe pistol was fired at the exhortation of the accused appellant. In ourconsidered view, the Sessions Court and the High Court both fell in errorin convicting the accused appellant.

30. For the reasons discussed above, the appeal is allowed. Thejudgment and order of the High Court under appeal, confirming theDjudgment and order of the conviction of the Sessions Court as also thejudgment and order of the Sessions Court are set aside, as against theaccused appellant. The accused appellant is acquitted and directed to beset free forthwith. It is made clear that this Court has not considered themerits of the conviction of the main accused Khilai and the appeal, ifEany, filed by the main accused Khilai shall be decided on its own merits.

Devika Gujral

Appeal allowed.

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