PUBLISHED IN http://judis.nic.in/supremecourt/filename=40455
Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1130 of 2010
Birendra Das & Anr. ... Appellants
Versus
State of Assam ...Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal is directed against the judgment of
conviction and order of sentence dated 30.8.2007 passed in
Criminal Appeal No. 106 of 2005 by the Gauhati High Court
affirming the verdict of conviction of the learned Sessions
Judge, Karimganj in Sessions Case No. 135 of 2004 whereby the
learned trial Judge had convicted the appellants under Section
302 in aid of Section 34 of the Indian Penal Code (for short
“IPC”) along with another and sentenced each of them to
undergo rigorous imprisonment for life and to pay a fine of
1Page 2
Rs.5000/- each, in default to pay the fine, to suffer further
imprisonment for one year.
2. The case related to the murder of a forty year old man
by the name of Matilal Das in the morning of 29.9.2003
by hacking him at various parts of the body in a brutal
manner with deadly weapons and the injuries sustained
by him were quite serious in nature. On the date of
occurrence, about 8.30 a.m., deceased Matilal Das was
proceeding towards his home from his shop and at that
time, the accused persons, namely, Rajan Das, Sadhan
Das, Madan Das, Birendra Das, Jara Das, Bapan Das,
Lakshmi Rani alias Latashi Rani and Smt. Jyotsna Das,
all being armed with deadly weapons like bhojali, dao,
etc. accosted him in front of the house of Birendra and
immediately Rajan Das dealt a blow on the head of
Matilal from behind by bhojali. After the assault, the
deceased raised alarm and fell down on the road.
Thereafter, all the accused persons hacked him as a
result of which he sustained number of injuries and
breathed his last on the spot. Hearing the scream of
Matilal, Nripendra Das and Sanjan Das came to the spot
2Page 3
and, at that juncture, Sadhan Das tried to attack Sanjan
Das, but he managed to flee away from the spot.
However, he inflicted a dao blow on Nripendra Das
which caused an injury on the finger of his left hand.
Thereafter, accused Birendra and others dragged the
dead body of Matilal to Birendra’s courtyard and there
they continued to hack the body resulting in severing of
certain limbs. Sanjan Das, son of the deceased Matilal,
lodged an FIR with the Officer-in-Charge of Kaliganj
Watch Post which was entered vide G.D. Entry No. 424
dated 29.9.2003 about 10.00 a.m. It was forwarded to
the Officer-in-Charge, Karimganj Police Station to
register a case and, accordingly, case No. 314/2003 was
registered for the offences punishable under Sections
147, 148, 149, 341, 324, 307 and 302 IPC. After the
criminal law was set in motion, the Investigating Officer
conducted the inquest of the dead body of the
deceased Matilal and sent it for post mortem, seized the
bhojali which was about 15 inch in length and a dao of 2
feet in length, both stained with blood, in the presence
of the witnesses vide Exts. 4 and 6. The injured
3Page 4
Nripendra Das was sent to Karimganj Hospital for
examination of injuries and treatment. After recording
the statements of the witnesses under Section 161 of
the Code of Criminal Procedure (Cr.PC), a charge-sheet
was placed against the accused persons and the said
charge-sheet showed Sadhan Das, Jara Das and Jyotsna
Rani as absconders. The learned Chief Judicial
Magistrate, Karimganj committed the case to the Court
of Session except that of accused Rajan Das, Madan
Das and Bapan Das who were found to be juvenile on
the basis of medical report and, accordingly, were sent
to the juvenile court at Silcher. After committal, the
learned Sessions Judge, considering the matter in
entirety, framed charges against Birendra Das, Latasil
Das and Jara Das under Section 302 read with 34 IPC.
3. The accused persons pleaded innocence and false
implication and claimed to be tried.
4. At the trial, the Prosecution, in order to bring home the
charge, examined 11 witnesses, namely, Sanjan Das,
PW-1, son of the deceased Matilal, Nripendra Das, PW-2,
a relation of the deceased, Dr. Rabindra Nath Das, PW-
4Page 5
3, who conducted the autopsy on the dead body of the
deceased, Dr. Pradip Dey, PW-4, who examined PW-2,
Namita Rani Das, PW-5, sister of the deceased, Samiran
Das, PW-6, neighbour of the deceased, Gita Das, PW-7,
a co-villager, Bibhash Bardhan, PW-8, a formal witness,
Rinku Rani, PW-9 and Haren Ghosh, PW-10, who had
seen part of the incident, and Prabhat Saikia, PW-11,
the Investigating Officer. Apart from adducing oral
evidence, the prosecution placed reliance on a large
number of documents. The accused persons chose not
to adduce any evidence.
5. On consideration of the evidence on record, the learned
Sessions Judge found that the accused-appellants
therein were guilty and imposed the sentence. On
appeal being preferred by two of the convicts, the High
Court gave the stamp of approval to the conviction and
the sentence as has been stated hereinbefore.
6. In support of the appeal, Ms. Kiran Bhardwaj, learned
counsel for the appellant, has submitted that the High
Court has faulted in accepting the evidence of the
principal witnesses cited by the prosecution as eye-
5Page 6
witnesses though they arrived at the spot after some
length of time. It is urged by her that the appellate
court has been swayed away by the emotion because of
the brutality involved in the murder and hence, the
approach as requisite under the criminal law has been
flawed and the result is unwarranted affirmation of
conviction. It is her further submission that Section 34
IPC is in no way attracted inasmuch as no overt act has
been attributed to the present appellants and there is
nothing on record to show that they had shared any
common intention. It is argued by her that though the
prosecution has alleged commission of such a ghastly
crime by the accused persons, yet remotely no motive
has been indicated or even endeavoured to be traced
and that shows that there has been spinning of
allegations on some kind of suspicion or conjectures.
7. Ms. Vartika S. Walia, learned counsel appearing for the
State, in oppugnation, has contended that description of
murder as brutal cannot be construed to be a predetermined judicial mind because the learned trial
Judge as well as the High Court has analysed the
6Page 7
evidence in a microscopic manner and found that the
accused-appellants are guilty of the offence. The
learned counsel would contend that carrying of
weapons to the place of occurrence and the other
activities which have been brought in the evidence
against the appellants have clearly established the
factum of common intention as envisaged under
Section 34 of the Penal Code. The specious stand that
no motive has been established by the prosecution is
absolutely irrelevant and deserves rejection as there is
ample direct evidence to show the commission of the
crime by the accused-appellants.
8. Before we proceed to deal with the contentions
canvassed at the Bar, it is imperative to state that there
is no dispute that the death of the deceased Matilal Das
was homicidal in nature. The doctor, who conducted
the post mortem on the dead body of Matilal Das, had
found the following injuries: -
“1) Right foot completely severed from the leg.
2) Right index finger is completely separated from
the hand. Other fingers are partially separated.
7Page 8
3) Fracture right wrist joint. Lacerated injury over
the right wrist joint about 4” x 3” bone deep.
4) Fracture of the right femur.
5) A sharp cut injury over the forehead extending
whole circumference of the head about 1” x ½”
x ½” just above the ear.
6) Sharp cut injury over the left thigh upper part
about 3” x 1.5” x 1”.”
9. The said witness has opined that the death was due to
shock and haemorrhage resulting from the injuries
sustained by the deceased and all the injuries were
ante mortem in nature.
10. Keeping in view the injuries sustained by the deceased,
it is to be seen how the prosecution has established the
complicity of the accused-appellants in the crime. PW-
1, the son of the deceased, has categorically stated
about his father getting the blow and falling down. He
has mentioned the names of the appellants herein to be
present there. It has come out in his testimony that
when he tried to go near his father, they tried to attack
him and out of fear he ran away and informed his
paternal uncle Nripendra, PW-2. It is in his evidence
8Page 9
that the dead body of his father was brought to the
courtyard of Birendra. In the cross-examination, he has
stood embedded in his version and the suggestion that
he had not seen the occurrence has been strongly
denied.
11. PW-2 has deposed that he saw Sadhan, Madan and
Rajan assaulting the deceased and when he tried to
intercept, he was assaulted and sustained an injury on
his finger. His injury on the finger has been
corroborated by Dr. Pradip Dey, PW-4. He has also
deposed that the deceased was bleeding profusely and
was dragged inside the courtyard of Birendra.
12. PW-5, Namita Rani Das, has testified that Sadhan,
Madan, Rajan and Bapan were hacking the deceased
Matilal and Birendra, Latani, Jyotsna and Jara were
dragging the dead body to the side of the fence. It has
come out in her evidence that the appellants were
armed with deadly weapons. In the cross-examination,
certain suggestions have been given as regards the
existence of animosity between her husband and Matilal
Das on one side and Birendra on the other over some
9Page 10
Panchayat road. Though the said aspect has been
accepted by her, yet the same cannot be treated as a
ground to discredit her testimony which has remained
absolutely unshaken. Similar is the evidence of other
prosecution witnesses.
13. Considering these aspects along with the factum that
the dead body was seized from the courtyard of
Birendra, it is difficult to accept the submission urged
by the learned counsel for the appellants that the eyewitnesses who have been cited as such are really not
eye-witnesses and they have been planted and,
accordingly, we reject the same.
14. The next limb of argument is that there has been no
allegation of any overt act against the present
appellants and their mere presence would not establish
their complicity. Learned counsel for the appellant has
invited our attention to the evidence of PW-1, son of the
deceased, who has stated that the present appellants
were present at the scene of occurrence. But that is not
the only evidence against them. It is also seen in the
evidence of others which we have already dealt with
10Page 11
hereinabove that the appellants were armed with
weapons and dragged the dead body of the deceased
to the courtyard of Birendra. From the aforesaid, the
question arises whether the common intention can be
derived or not. What is really proponed by Ms.
Bhardwaj is that the appellants had not inflicted any
blow on the deceased. The aforesaid contention,
needless to say, is totally without any substratum. Both
the accused persons were charged for the substantive
offence under Section 302 IPC in aid of Section 34 of the
Penal Code. The conditions precedent which are
requisite to be satisfied to attract Section 34 of the
Penal Code are that the act must have been done by
more than one person and the said persons must have
shared a common intention either by omission or
commission in effectuating the crime. A separate act
by each of the accused is not necessary. The
Constitution Bench in Mohan Singh v. State of
Punjab1
, while adverting to the concept of Section 34
IPC, has ruled thus: -
1
AIR 1963 SC 174
11Page 12
“Like Section 149, Section 34 also deals with
cases of constructive criminal liability. It
provides that where a criminal act is done by
several persons in furtherance of the common
intention of all, each of such persons is liable for
that act in the same manner as if it were done
by him alone. The essential constituent of the
vicarious criminal liability prescribed by Section
34 is the existence of common intention. If the
common intention in question animates the
accused persons and if the said common
intention leads to the commission of the
criminal offence charged, each of the persons
sharing the common intention is constructively
liable for the criminal act done by one of them.
Just as the combination of persons sharing the
same common object is one of the features of
an unlawful assembly, so the existence of a
combination of persons sharing the same
common intention is one of the features of
Section 34.”
15. In Lallan Rai and others v. State of Bihar2
, relying
upon the dictum laid down in Barendra Kumar Ghosh
v. King Emperor3
and Mohan Singh (supra), it has
been ruled that the essence of Section 34 is
simultaneous consensus of the mind of persons
participating in the criminal action to achieve a
particular result.
2
(2003) 1 SCC 268
3
AIR 1925 PC 1
12Page 13
16. Recently, in Goudappa and others v. State of
Karnataka4
, the Court reiterated the principle stating
that Section 34 of the Penal Code lays down a principle
of joint liability in doing a criminal act and the essence
of that liability is to be found in the existence of
common intention, animating the accused leading to
the doing of a criminal act in furtherance of such
intention. It has been further stated therein that the
principle inherent in Section 34 of the Penal Code is only
a rule of evidence, but does not create a substantive
offence and, therefore, if the act is the result of a
common intention, then every person would get the
criminal act shared, and the common intention would
make him liable for the offence committed irrespective
of the role which he had in its perpetration. Posing the
question how to gather the common intention, the
Court opined that the conduct of the accused soon
before and after the occurrence, the determination and
concern with which the crime was committed, the
weapon carried by the accused and the nature of the
4
(2013) 3 SCC 675
13Page 14
injury caused by one or some of them are relevant.
Emphasis has also been laid on the totality of the
circumstances from which the common intention can be
gathered.
17. In the case at hand, as has been indicated earlier, the
appellants were not onlookers as the submission seems
to be. Their intention is clearly reflectible from their
presence with weapons at the place of occurrence till
the commission of the crime and thereafter dragging
the dead body to the courtyard of Birendra. Thus, in
our considered opinion, the submission that Section 34
of IPC is not attracted is extremely specious and does
not deserve acceptance.
18. The last ground of attack on the sustainability of the
conviction is that the prosecution has not been able to
prove any motive. The learned counsel would submit
that when the animosity between some of the
witnesses and the deceased has been admitted, there
can be a ground for false implication. We have already
analysed the evidence brought on record and there is
nothing to discard the same. In Balram Singh and
14Page 15
another v. State of Punjab5
, it has been clearly
stated that if the incident in question as projected by
the prosecution is to be accepted, then the presence or
absence of a motive or strength of the said motive by
itself would not make the prosecution case weak.
19. In this context, we may sit in a time machine and refer
to few lines from Atley v. State of U.P.6
wherein it has
been expressed thus: -
“This is true, and where there is clear proof of motive
for the crime, that lends additional support to the
finding of the court that the accused was guilty, but
absence of clear proof of motive does not necessarily
lead to the contrary conclusion.”
20. In State of Uttar Pradesh v. Kishanpal and others7
,
while dealing with the presence of motive, a two-Judge
Bench had to say thus: -
“39. The motive may be considered as a
circumstance which is relevant for assessing the
evidence but if the evidence is clear and
unambiguous and the circumstances prove the guilt
of the accused, the same is not weakened even if the
5
AIR 2003 SC 2213
6
AIR 1955 SC 807
7
(2008) 16 SCC 73
15Page 16
motive is not a very strong one. It is also settled law
that the motive loses all its importance in a case
where direct evidence of eyewitnesses is available,
because even if there may be a very strong motive
for the accused persons to commit a particular crime,
they cannot be convicted if the evidence of
eyewitnesses is not convincing. In the same way,
even if there may not be an apparent motive but if
the evidence of the eyewitnesses is clear and
reliable, the absence or inadequacy of motive cannot
stand in the way of conviction.”
21. Thus, acceptation of the direct evidence on record on
proper scrutiny and analysis of proof of existence of
motive or strength of motive does not affect the
prosecution case. That apart, it is always to be borne in
mind that different motives may come into operation in
the minds of different persons, for human nature has
the potentiality to hide many things and that is the
realistic diversity of human nature and it would be well
nigh impossible for the prosecution to prove the motive
behind every criminal act. Therefore, when the
appellants armed with lethal weapons were present and
witnessed the occurrence and participated in dragging
the deceased to the courtyard of Birendra,
establishment of any motive is absolutely
inconsequential.
16Page 17
22. Consequently, the appeal, being devoid of merit, stands
dismissed.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
July 01, 2013.
17
Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1130 of 2010
Birendra Das & Anr. ... Appellants
Versus
State of Assam ...Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal is directed against the judgment of
conviction and order of sentence dated 30.8.2007 passed in
Criminal Appeal No. 106 of 2005 by the Gauhati High Court
affirming the verdict of conviction of the learned Sessions
Judge, Karimganj in Sessions Case No. 135 of 2004 whereby the
learned trial Judge had convicted the appellants under Section
302 in aid of Section 34 of the Indian Penal Code (for short
“IPC”) along with another and sentenced each of them to
undergo rigorous imprisonment for life and to pay a fine of
1Page 2
Rs.5000/- each, in default to pay the fine, to suffer further
imprisonment for one year.
2. The case related to the murder of a forty year old man
by the name of Matilal Das in the morning of 29.9.2003
by hacking him at various parts of the body in a brutal
manner with deadly weapons and the injuries sustained
by him were quite serious in nature. On the date of
occurrence, about 8.30 a.m., deceased Matilal Das was
proceeding towards his home from his shop and at that
time, the accused persons, namely, Rajan Das, Sadhan
Das, Madan Das, Birendra Das, Jara Das, Bapan Das,
Lakshmi Rani alias Latashi Rani and Smt. Jyotsna Das,
all being armed with deadly weapons like bhojali, dao,
etc. accosted him in front of the house of Birendra and
immediately Rajan Das dealt a blow on the head of
Matilal from behind by bhojali. After the assault, the
deceased raised alarm and fell down on the road.
Thereafter, all the accused persons hacked him as a
result of which he sustained number of injuries and
breathed his last on the spot. Hearing the scream of
Matilal, Nripendra Das and Sanjan Das came to the spot
2Page 3
and, at that juncture, Sadhan Das tried to attack Sanjan
Das, but he managed to flee away from the spot.
However, he inflicted a dao blow on Nripendra Das
which caused an injury on the finger of his left hand.
Thereafter, accused Birendra and others dragged the
dead body of Matilal to Birendra’s courtyard and there
they continued to hack the body resulting in severing of
certain limbs. Sanjan Das, son of the deceased Matilal,
lodged an FIR with the Officer-in-Charge of Kaliganj
Watch Post which was entered vide G.D. Entry No. 424
dated 29.9.2003 about 10.00 a.m. It was forwarded to
the Officer-in-Charge, Karimganj Police Station to
register a case and, accordingly, case No. 314/2003 was
registered for the offences punishable under Sections
147, 148, 149, 341, 324, 307 and 302 IPC. After the
criminal law was set in motion, the Investigating Officer
conducted the inquest of the dead body of the
deceased Matilal and sent it for post mortem, seized the
bhojali which was about 15 inch in length and a dao of 2
feet in length, both stained with blood, in the presence
of the witnesses vide Exts. 4 and 6. The injured
3Page 4
Nripendra Das was sent to Karimganj Hospital for
examination of injuries and treatment. After recording
the statements of the witnesses under Section 161 of
the Code of Criminal Procedure (Cr.PC), a charge-sheet
was placed against the accused persons and the said
charge-sheet showed Sadhan Das, Jara Das and Jyotsna
Rani as absconders. The learned Chief Judicial
Magistrate, Karimganj committed the case to the Court
of Session except that of accused Rajan Das, Madan
Das and Bapan Das who were found to be juvenile on
the basis of medical report and, accordingly, were sent
to the juvenile court at Silcher. After committal, the
learned Sessions Judge, considering the matter in
entirety, framed charges against Birendra Das, Latasil
Das and Jara Das under Section 302 read with 34 IPC.
3. The accused persons pleaded innocence and false
implication and claimed to be tried.
4. At the trial, the Prosecution, in order to bring home the
charge, examined 11 witnesses, namely, Sanjan Das,
PW-1, son of the deceased Matilal, Nripendra Das, PW-2,
a relation of the deceased, Dr. Rabindra Nath Das, PW-
4Page 5
3, who conducted the autopsy on the dead body of the
deceased, Dr. Pradip Dey, PW-4, who examined PW-2,
Namita Rani Das, PW-5, sister of the deceased, Samiran
Das, PW-6, neighbour of the deceased, Gita Das, PW-7,
a co-villager, Bibhash Bardhan, PW-8, a formal witness,
Rinku Rani, PW-9 and Haren Ghosh, PW-10, who had
seen part of the incident, and Prabhat Saikia, PW-11,
the Investigating Officer. Apart from adducing oral
evidence, the prosecution placed reliance on a large
number of documents. The accused persons chose not
to adduce any evidence.
5. On consideration of the evidence on record, the learned
Sessions Judge found that the accused-appellants
therein were guilty and imposed the sentence. On
appeal being preferred by two of the convicts, the High
Court gave the stamp of approval to the conviction and
the sentence as has been stated hereinbefore.
6. In support of the appeal, Ms. Kiran Bhardwaj, learned
counsel for the appellant, has submitted that the High
Court has faulted in accepting the evidence of the
principal witnesses cited by the prosecution as eye-
5Page 6
witnesses though they arrived at the spot after some
length of time. It is urged by her that the appellate
court has been swayed away by the emotion because of
the brutality involved in the murder and hence, the
approach as requisite under the criminal law has been
flawed and the result is unwarranted affirmation of
conviction. It is her further submission that Section 34
IPC is in no way attracted inasmuch as no overt act has
been attributed to the present appellants and there is
nothing on record to show that they had shared any
common intention. It is argued by her that though the
prosecution has alleged commission of such a ghastly
crime by the accused persons, yet remotely no motive
has been indicated or even endeavoured to be traced
and that shows that there has been spinning of
allegations on some kind of suspicion or conjectures.
7. Ms. Vartika S. Walia, learned counsel appearing for the
State, in oppugnation, has contended that description of
murder as brutal cannot be construed to be a predetermined judicial mind because the learned trial
Judge as well as the High Court has analysed the
6Page 7
evidence in a microscopic manner and found that the
accused-appellants are guilty of the offence. The
learned counsel would contend that carrying of
weapons to the place of occurrence and the other
activities which have been brought in the evidence
against the appellants have clearly established the
factum of common intention as envisaged under
Section 34 of the Penal Code. The specious stand that
no motive has been established by the prosecution is
absolutely irrelevant and deserves rejection as there is
ample direct evidence to show the commission of the
crime by the accused-appellants.
8. Before we proceed to deal with the contentions
canvassed at the Bar, it is imperative to state that there
is no dispute that the death of the deceased Matilal Das
was homicidal in nature. The doctor, who conducted
the post mortem on the dead body of Matilal Das, had
found the following injuries: -
“1) Right foot completely severed from the leg.
2) Right index finger is completely separated from
the hand. Other fingers are partially separated.
7Page 8
3) Fracture right wrist joint. Lacerated injury over
the right wrist joint about 4” x 3” bone deep.
4) Fracture of the right femur.
5) A sharp cut injury over the forehead extending
whole circumference of the head about 1” x ½”
x ½” just above the ear.
6) Sharp cut injury over the left thigh upper part
about 3” x 1.5” x 1”.”
9. The said witness has opined that the death was due to
shock and haemorrhage resulting from the injuries
sustained by the deceased and all the injuries were
ante mortem in nature.
10. Keeping in view the injuries sustained by the deceased,
it is to be seen how the prosecution has established the
complicity of the accused-appellants in the crime. PW-
1, the son of the deceased, has categorically stated
about his father getting the blow and falling down. He
has mentioned the names of the appellants herein to be
present there. It has come out in his testimony that
when he tried to go near his father, they tried to attack
him and out of fear he ran away and informed his
paternal uncle Nripendra, PW-2. It is in his evidence
8Page 9
that the dead body of his father was brought to the
courtyard of Birendra. In the cross-examination, he has
stood embedded in his version and the suggestion that
he had not seen the occurrence has been strongly
denied.
11. PW-2 has deposed that he saw Sadhan, Madan and
Rajan assaulting the deceased and when he tried to
intercept, he was assaulted and sustained an injury on
his finger. His injury on the finger has been
corroborated by Dr. Pradip Dey, PW-4. He has also
deposed that the deceased was bleeding profusely and
was dragged inside the courtyard of Birendra.
12. PW-5, Namita Rani Das, has testified that Sadhan,
Madan, Rajan and Bapan were hacking the deceased
Matilal and Birendra, Latani, Jyotsna and Jara were
dragging the dead body to the side of the fence. It has
come out in her evidence that the appellants were
armed with deadly weapons. In the cross-examination,
certain suggestions have been given as regards the
existence of animosity between her husband and Matilal
Das on one side and Birendra on the other over some
9Page 10
Panchayat road. Though the said aspect has been
accepted by her, yet the same cannot be treated as a
ground to discredit her testimony which has remained
absolutely unshaken. Similar is the evidence of other
prosecution witnesses.
13. Considering these aspects along with the factum that
the dead body was seized from the courtyard of
Birendra, it is difficult to accept the submission urged
by the learned counsel for the appellants that the eyewitnesses who have been cited as such are really not
eye-witnesses and they have been planted and,
accordingly, we reject the same.
14. The next limb of argument is that there has been no
allegation of any overt act against the present
appellants and their mere presence would not establish
their complicity. Learned counsel for the appellant has
invited our attention to the evidence of PW-1, son of the
deceased, who has stated that the present appellants
were present at the scene of occurrence. But that is not
the only evidence against them. It is also seen in the
evidence of others which we have already dealt with
10Page 11
hereinabove that the appellants were armed with
weapons and dragged the dead body of the deceased
to the courtyard of Birendra. From the aforesaid, the
question arises whether the common intention can be
derived or not. What is really proponed by Ms.
Bhardwaj is that the appellants had not inflicted any
blow on the deceased. The aforesaid contention,
needless to say, is totally without any substratum. Both
the accused persons were charged for the substantive
offence under Section 302 IPC in aid of Section 34 of the
Penal Code. The conditions precedent which are
requisite to be satisfied to attract Section 34 of the
Penal Code are that the act must have been done by
more than one person and the said persons must have
shared a common intention either by omission or
commission in effectuating the crime. A separate act
by each of the accused is not necessary. The
Constitution Bench in Mohan Singh v. State of
Punjab1
, while adverting to the concept of Section 34
IPC, has ruled thus: -
1
AIR 1963 SC 174
11Page 12
“Like Section 149, Section 34 also deals with
cases of constructive criminal liability. It
provides that where a criminal act is done by
several persons in furtherance of the common
intention of all, each of such persons is liable for
that act in the same manner as if it were done
by him alone. The essential constituent of the
vicarious criminal liability prescribed by Section
34 is the existence of common intention. If the
common intention in question animates the
accused persons and if the said common
intention leads to the commission of the
criminal offence charged, each of the persons
sharing the common intention is constructively
liable for the criminal act done by one of them.
Just as the combination of persons sharing the
same common object is one of the features of
an unlawful assembly, so the existence of a
combination of persons sharing the same
common intention is one of the features of
Section 34.”
15. In Lallan Rai and others v. State of Bihar2
, relying
upon the dictum laid down in Barendra Kumar Ghosh
v. King Emperor3
and Mohan Singh (supra), it has
been ruled that the essence of Section 34 is
simultaneous consensus of the mind of persons
participating in the criminal action to achieve a
particular result.
2
(2003) 1 SCC 268
3
AIR 1925 PC 1
12Page 13
16. Recently, in Goudappa and others v. State of
Karnataka4
, the Court reiterated the principle stating
that Section 34 of the Penal Code lays down a principle
of joint liability in doing a criminal act and the essence
of that liability is to be found in the existence of
common intention, animating the accused leading to
the doing of a criminal act in furtherance of such
intention. It has been further stated therein that the
principle inherent in Section 34 of the Penal Code is only
a rule of evidence, but does not create a substantive
offence and, therefore, if the act is the result of a
common intention, then every person would get the
criminal act shared, and the common intention would
make him liable for the offence committed irrespective
of the role which he had in its perpetration. Posing the
question how to gather the common intention, the
Court opined that the conduct of the accused soon
before and after the occurrence, the determination and
concern with which the crime was committed, the
weapon carried by the accused and the nature of the
4
(2013) 3 SCC 675
13Page 14
injury caused by one or some of them are relevant.
Emphasis has also been laid on the totality of the
circumstances from which the common intention can be
gathered.
17. In the case at hand, as has been indicated earlier, the
appellants were not onlookers as the submission seems
to be. Their intention is clearly reflectible from their
presence with weapons at the place of occurrence till
the commission of the crime and thereafter dragging
the dead body to the courtyard of Birendra. Thus, in
our considered opinion, the submission that Section 34
of IPC is not attracted is extremely specious and does
not deserve acceptance.
18. The last ground of attack on the sustainability of the
conviction is that the prosecution has not been able to
prove any motive. The learned counsel would submit
that when the animosity between some of the
witnesses and the deceased has been admitted, there
can be a ground for false implication. We have already
analysed the evidence brought on record and there is
nothing to discard the same. In Balram Singh and
14Page 15
another v. State of Punjab5
, it has been clearly
stated that if the incident in question as projected by
the prosecution is to be accepted, then the presence or
absence of a motive or strength of the said motive by
itself would not make the prosecution case weak.
19. In this context, we may sit in a time machine and refer
to few lines from Atley v. State of U.P.6
wherein it has
been expressed thus: -
“This is true, and where there is clear proof of motive
for the crime, that lends additional support to the
finding of the court that the accused was guilty, but
absence of clear proof of motive does not necessarily
lead to the contrary conclusion.”
20. In State of Uttar Pradesh v. Kishanpal and others7
,
while dealing with the presence of motive, a two-Judge
Bench had to say thus: -
“39. The motive may be considered as a
circumstance which is relevant for assessing the
evidence but if the evidence is clear and
unambiguous and the circumstances prove the guilt
of the accused, the same is not weakened even if the
5
AIR 2003 SC 2213
6
AIR 1955 SC 807
7
(2008) 16 SCC 73
15Page 16
motive is not a very strong one. It is also settled law
that the motive loses all its importance in a case
where direct evidence of eyewitnesses is available,
because even if there may be a very strong motive
for the accused persons to commit a particular crime,
they cannot be convicted if the evidence of
eyewitnesses is not convincing. In the same way,
even if there may not be an apparent motive but if
the evidence of the eyewitnesses is clear and
reliable, the absence or inadequacy of motive cannot
stand in the way of conviction.”
21. Thus, acceptation of the direct evidence on record on
proper scrutiny and analysis of proof of existence of
motive or strength of motive does not affect the
prosecution case. That apart, it is always to be borne in
mind that different motives may come into operation in
the minds of different persons, for human nature has
the potentiality to hide many things and that is the
realistic diversity of human nature and it would be well
nigh impossible for the prosecution to prove the motive
behind every criminal act. Therefore, when the
appellants armed with lethal weapons were present and
witnessed the occurrence and participated in dragging
the deceased to the courtyard of Birendra,
establishment of any motive is absolutely
inconsequential.
16Page 17
22. Consequently, the appeal, being devoid of merit, stands
dismissed.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
July 01, 2013.
17
