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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
10

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.
13

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
15

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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