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Supreme Court of India
Chhota Ahirwar vs The State Of Madhya Pradesh on 6 February, 2020Author: Hon’Ble Ms. Banerjee
Bench: Hon’Ble Ms. Banerjee, S. Ravindra Bhat
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 238 OF 2011
CHHOTA AHIRWAR …..Appellant
versus
THE STATE OF MADHYA PRADESH ….Respondent
JUDGMENT
Indira Banerjee, J.
This appeal is against a judgment and order dated 5 th
November, 2008 passed by the High Court of Madhya Pradesh at
Jabalpur, dismissing Criminal Appeal No.1050 of 1994 filed by the
appellant, and upholding the judgment dated 26th August, 1994
Signature Not Verified
passed by the Additional Sessions Judge, District Panna, Madhya
Digitally signed by
RAJNI MUKHI
Date: 2020.02.14
16:32:20 IST
Reason:
Pradesh in Sessions Case No. 13/1993, inter alia, convicting the
accused appellant of offence under Section 307 read with Section
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34 of the Indian Penal Code.
2. The accused appellant was tried by the Sessions Court, on
charges under Section 307/34 of the Indian Penal Code, for
attempt, with common intent along with the main accused Khilai, to
murder the complainant and for instigating the said accused Khilai
to fire at the complainant with a country made pistol, in furtherance
of a common intent 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 accused appellant and the complainant, in which the said
accused Khilai intervened. The said accused Khilai who had joined
the accused appellant and the complainant, took out a country
made pistol from the pocket of his trousers, pointed it towards the
complainant and fired at the instigation of the accused appellant,
who urged the said accused Khilai to kill the complainant. The
complainant, therefore, sustained injuries on his forehead near his
eye and on his lips and shoulder with splinters from the pistol and
started bleeding. It is the further case of the Prosecution, that after
the firing, the accused Khilai fled the scene of occurrence and the
accused appellant followed him. Immediately thereafter, the
complainant reported the incident at the Mohandra Chowki. The
report was forwarded to the Simariya Police station where Crime
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No.110/1992 was registered.
4. After investigation, Chargesheet was filed against the
accused appellant and the main accused Khilai, both of whom
pleaded ‘Not Guilty” and claimed to be tried. To establish the
charges framed against the accused, the Prosecution examined 11
witnesses. The accused appellant did not examine any witness nor
did the main accused, Khilai.
5. By a judgment dated 26th August, 1994, the Additional
Sessions Judge, Panna held the accused appellant guilty of offence
under Section 307/34 of the Indian Penal Code and the main
accused Khilai guilty of offence under Section 307 of the Indian
Penal Code. By an order of sentence passed on the same day the
accused appellant was sentenced to undergo rigorous
imprisonment for five years in addition to fine of Rs.1000/-.
6. Being aggrieved by the aforesaid judgment of conviction and
order of sentence, the accused appellant appealed to the High
Court. The said appeal being Criminal Appeal No. 1050 of 1994 has
been dismissed by the judgment and order impugned in this
appeal.
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7. The accused appellant, the main accused, Khilai, and the
complainant were all related. Sunder Lal, father of the main
accused Khilai and uncle of the complainant, had given his share of
land to the accused appellant for cultivation. There were land
disputes between members of the family and in particular between
the complainant and the accused appellant.
8. Of the eleven witnesses examined by the Prosecution, the
first Prosecution Witnesses (PW-1) only gave evidence of
preparation of a sketch map at the place of occurrence and the
second Prosecution Witness (PW-2) testified to the receipt of case
records in the office of the District Magistrate. The Sixth Prosecution
Witness (PW-6) only witnessed the preparation of the site map of
the place of occurrence, recovery of an iron splinter and some
blood stained clothes and articles. Three witnesses, that is, the 5 th,
9th and 10th witnesses (PW-5, PW-9, PW-10) did not support the case
made out by the Prosecution and were declared hostile. The ninth
and tenth Prosecution Witnesses who were produced to testify to
the confession allegedly made by the main accused Khilai in their
presence, leading to recovery of the weapon, categorically denied
their presence at the time of recovery of the pistol and were
declared hostile. They also denied that the main accused Khilai had
made any confession. The 11 th Prosecution Witness (PW-11) only
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testified to the arrest of the accused appellant. The evidence of
these witnesses is of no relevance to the guilt of the accused
appellant.
9. The 8th Prosecution Witness (PW-8) who had been working as
Assistant Surgeon at the Primary Health Centre, Mohandra
described the wounds found on the body of the complainant and
opined that the injuries were caused by splinters from a firearm. In
cross examination he said that no splinters were found from the
injury during examination. The evidence of this witness suggests
that the injuries could have been caused by firing a pistol. He ruled
out the possibility of the injury having been caused as a
consequence of explosion of stone. At the highest, the evidence of
PW-8 establishes that a pistol was fired, as a result of which the
complainant sustained injuries. The possibility of the injuries being
sustained while cleaning the pistol was not ruled out by this
witness. This witness has also not said anything relevant to the
guilt of the accused appellant.
10. The 7th Prosecution Witness (PW-7) was the Investigating
Officer, who deposed that he had sent the report of the incident to
the Simaria Police Station on the basis of which criminal case
No.110/1992 under Section 307/34 of the Indian Penal Code had
been registered and had examined the complainant, Prem Shankar
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Kateha (PW-4), Sabbu Chourasia 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 the
accused 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, when he was going to Khareja from his house, the
accused appellant stopped him on the way and told him not to
cultivate his land. The main accused Khilai also came and
intervened, whereupon the complainant told the main accused
Khilai, not to interfere and to go home, as he was in no way
concerned with the dispute between the complainant (PW-3) and
the accused appellant.
12. The complainant (PW-3) deposed that on being told to go
home, the main accused Khilai took out a pistol from the right
pocket of his pants and pointed it at him. The complainant (PW-3)
told the main accused Khilai not to open fire, whereupon the
accused appellant urged the main accused Khilai to kill the
complainant (PW-3). Thereafter, the main accused, Khilai fired the
pistol, causing injury to the complainant with the splinters. The
complainant (PW-3) further stated that the incident took place in
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the presence of Prem Shankar Kateha who desposed as the fourth
witness for the Prosecution (PW-4) who was there at the place of
occurrence and also in the presence of Sabbu Chourasia who had
been selling oil and Bharat Kateha who had been helping in
arranging the cans of oil.
13. According to the complainant (PW-3), the aforesaid three
persons, Prem Shankar Kateha (PW-4), Sabbu Chourasia and Bharat
Kateha challenged the main accused Khilai, whereupon Khilai fled
towards the bus stand and the accused appellant followed him
running.
14. From the evidence of the complainant (PW-3), it transpires
that 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 trousers and pointed it towards the complainant (PW-
3). When the complainant (PW-3) told the main accused Khilai not
to fire, the accused appellant exhorted 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 the
existence of serious disputes between the appellant and the
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accused, and/or the immediate members of their respective
families. In his cross-examination the complainant (PW-3) admitted
that one year before the incident his uncle Sunder Lal, that is,
father of the main accused Khilai, had filed an application against
the complainant (PW-3) and his father Asha Ram at Tehsil office,
Pawai regarding the land in dispute. The complainant (PW-3)
deposed that at the time of the incident his uncle Sunder Lal had
given his share to the accused appellant on ‘Batai’ for cultivation.
He stated that the share of his uncle Sunder Lal, which was given to
the accused appellant on ‘Batai’, was adjacent to his share of land.
The complainant (PW-3) also admitted in cross-examination that on
the basis of a report filed by the main accused, Khilai, and his
father Sunder Lal, a case has been registered under the
complainant (PW-3) and his younger brother Buttu in the court of
Judicial Magistrate, Pawai under Sections 379 and 447 of the Indian
Penal Code. The case was filed before the incident. The
complainant (PW-3) also admitted that there were several other
cases between the complainant (PW-3) and/or members of his
immediate and the accused appellant as also members of the
accused appellant’s family which were still pending at the time of
the incident.
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16. It is not in dispute that the accused appellant neither carried
arms nor opened fire. The accused appellant is alleged to have
instigated the opening of fire. In cross-examination the complainant
(PW-3) admitted that he had not in his statement to the police
under Section 161 of the Cr.PC stated anything about any
instigation by the accused appellant to the main accused Khilai.
17. The Sessions Court has apparently proceeded on the basis
that PW-4, eye witness to the incident had corroborated the
evidence of the complainant (PW-3). The Sessions Court however
overlooked certain serious discrepancies between the evidence of
PW-4 and the evidence of the complainant (PW-3) with regard to
the alleged role of the accused appellant. While the complainant
(PW-3), himself the injured witness, has deposed that the accused
appellant exhorted the main accused Khilai to kill him, after the
main accused Khilai had pointed the pistol at the complainant (PW-
3), PW-4 had deposed that on being told by the accused appellant
to beat the complainant (PW-3), the main accused Khilai took out
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
related dispute. The accused appellant asked the complainant (PW-
3) not to go to the field, whereupon the complainant retorted that
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the land belonged to 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 asked the complainant, PW-3 why
he was going to the field whereupon the accused appellant told the
main accused Khilai that the complainant would not easily give up
and urged the main accused to beat him. At this point, the main
accused Khilai took out the pistol from his pocket.
19. PW-5, who was declared hostile has confirmed that there was
an altercation between the complainant and the accused appellant.
According to this appellant, the main accused Khilai came and
intervened. The main accused Khilai hurled abuses at the
complainant, took out his pistol from his pocket and threatened to
kill the complainant if he went to the field. Thereafter the main
accused went to the back of the house, after which the sound of
firing was heard. PW-5 did not say that 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 who had fired from his pistol and injured the complainant.
The question is whether, having regard to the facts established by
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the Prosecution, the appellant could have been held guilty of
offence under Section 307 by invocation of Section 34 of the Indian
Penal Code.
21. It is a settled principle of criminal law that only the person
who actually commits the offence can be held guilty and sentenced
in accordance with law. However, Section 34 lays down a principle
of joint liability in a criminal act, the essence of which is to be found
in the existence of common intention, instigating the main accused
to do the criminal act, in furtherance of such intention. Even when
separate acts are 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 had been done by all of these persons.
22. Section 34 is only a rule of evidence which attracts the
principle of joint criminal liability and does not create any distinct,
substantive offence as held by this Court in B.N. Srikantiah vs.
Siddiah reported in AIR 1958 SC 672; Bharwad Mepa Dana
and Anr. Vs. State of Bombay reported in AIR 1960 SC 289 and
other similar cases. To quote Arijit Pasayat, J. in Harbans Kaur
and Another vs. State of Haryana reported in (2005) 9 SCC
195; the distinctive feature of Section 34 is the element of
participation in action.
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23. Common intention can only be inferred from proved facts and
circumstances as held by this Court in Manik Das & Ors. vs.
State of Assam reported in AIR 2007 SC 2274. Of course, as
held in Abdul Mannan vs. State of Assam reported in (2010) 3
SCC 381, the common intention can develop during the course of
an occurrence.
24. Section 34 is only attracted when a specific criminal act is
done by several persons in furtherance of the common intention of
all, in which case all the offenders are liable for that criminal act in
the same manner as the principal offender as if the act were done
by all the offenders. This Section does not whittle down the liability
of the principal offender committing the principal act but
additionally makes all other offenders liable. The essence of
liability under Section 34 is simultaneous consensus of the minds of
persons participating in the criminal act to bring about a particular
result, which consensus can even be developed at 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 the particular
offence. To constitute common intention, it is absolutely necessary
that the intention of each one of the accused should be known to
the rest of the accused.
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25. Mere participation in crime with others is not sufficient to
attribute common intention. The question is whether, having regard
to the facts and circumstances of this case, it can be held that the
Prosecution established that there was a common intention
between the accused appellant and the main accused Khilai to kill
the complainant. In other words, the Prosecution is required to
prove a premeditated intention of both the accused appellant and
the main accused Khilai, to kill the complainant, of which both the
accused appellant and the main accused Khilai were aware.
Section 34 of the Indian Penal Code, is really intended to meet a
case in which it is difficult to distinguish between the acts of
individual members of a party and prove exactly what part was
played by each of them.
26. To attract Section 34 of the Indian Penal Code, no overt act is
needed on the part of the accused if they share common intention
with others in respect of the ultimate criminal act, which may be
done by any one of the accused sharing such intention [see Ashok
Basho (2010) SCC 660 (669)]. To quote from the judgment of the
Privy Council in the famous case of Barendra Kumar Ghosh
reported in AIR 1925 Privy Council 1, “they also serve who stand
and wait”.
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27. Common intention implies acting in concert. Existence of a
prearranged plan has to be proved either from the conduct of the
accused, or from circumstances or from any incriminating facts. It
is not enough to have the same intention independently of each
other.
28. The question in this case is, whether the Prosecution has
been able to establish a pre-arranged common intention between
the accused appellant and the main accused Khilai to kill the
complainant in pursuance of which the accused Khilai open fired
from his pistol. The answer to the aforesaid question has to be in
the negative for the following reasons:
(i) A quarrel broke out between the accused appellant and the
complainant. When the accused appellant tried to prevent the
complainant from going to the field, the complainant insisted on
doing so. While the quarrel was going on, the main accused Khilai
arrived at the spot and intervened whereupon the complainant told
him off, saying he should go home as he was in no way concerned
with the dispute. At this, the main accused Khilai brought out a
pistol from his right pant pocket and aimed it at the complainant.
(ii) There is no evidence to establish any pre-arrangement to
converge at the place of occurrence. The circumstances established
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suggest that intervention by the main accused Khilai was by
chance. The main accused Khilai chanced to stop as he was
passing by the place of occurrence when the accused appellant and
the complainant were quarrelling.
(iii) As per the evidence of the complainant, who is a injured
witness, when the complainant told the main accused Khilai not to
intervene and to go home, Khilai reacted by taking out the pistol
from his right pant pocket and pointing it at the complainant. The
pistol was taken out by the main accused and pointed at Khilai,
without any instigation from the accused appellant.
(iv) Even if it is accepted that the accused appellant uttered the
words attributed to him by the complainant (PW-3) in his evidence,
this seems to have been done on the spur of the moment. Pre-
arrangement is not established.
(v) As observed above, there are some notable discrepancies
between the evidence of the complainant (PW-3) and PW-4 which
raise serious doubts with regard to the truth and/or accuracy of
their evidence particularly in view of the enmity and pre-existing
family disputes between the parties.
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(vi) Even though PW-5 may have been declared hostile, his
evidence is not to be rejected with in its entirely. This witness also
confirmed that there was an altercation between the accused
appellant and the complainant, in which the main accused Khilai
intervened, took out his pistol and aimed it at the complainant.
These facts are corroborated by PW-3 (the Complainant) and PW-4.
This witness however stated that the main accused Khilai took out
his pistol and threatened to kill the complainant. He did not say
that the accused appellant urged the main accused, Khilai to shoot.
29. Even though there may be some evidence that the main
accused took out a pistol and opened fire, the Prosecution has
miserably failed to establish any common, premeditated or
prearranged intention jointly of the accused appellant and the main
accused Khilai to kill the complainant, on the spot or otherwise.
The Prosecution has also failed to prove that the pistol was fired at
the exhortation of the accused appellant. In our considered view,
the Sessions Court and the High Court both fell in error in
convicting the accused appellant.
30. For the reasons discussed above, the appeal is allowed. The
judgment and order of the High Court under appeal, confirming the
judgment and order of the conviction of the Sessions Court as also
the judgment and order of the Sessions Court are set aside, as
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against the accused appellant. The accused appellant is acquitted
and directed to be set free forthwith. It is made clear that this
Court has not considered the merits of the conviction of the main
accused Khilai and the appeal, if any, filed by the main accused
Khilai shall be decided on its own merits.
……………………………..J
(INDIRA BANERJEE)
……………………………..J
(S. RAVINDRA BHAT)
FEBRUARY 06, 2020
NEW DELHI
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