Holding

The Supreme Court affirmed that a common intention was established and convicted the accused of murder under Section 302 read with Section 34 IPC.

Summary

The incident arose from a dispute over water where accused No.1 (Nasibkha) and No.2 (Asif Khan) first assaulted the complainant and his brother Sardarkha, then left on a motorcycle and returned after ten minutes armed with a knife. Accused No.2 held Sardarkha’s neck while accused No.1 stabbed him, causing a fatal liver injury. The trial court convicted them of culpable homicide not amounting to murder under Section 304 Part II IPC with Section 34, but the High Court upgraded the conviction to murder under Section 302 IPC with Section 34. The appellant challenged the conviction, arguing lack of pre‑planned murder and absence of common intention. The Supreme Court held that the circumstances—returning with a deadly weapon, coordinated actions, and eyewitness testimony—demonstrated a common intention, satisfying Section 34, and that the injury was sufficient to cause death, warranting conviction under Section 302. The appeal was dismissed.

Issues considered

The existence of a common intention between the accused under Section 34 IPC.
Whether the offence should be classified as murder under Section 302 IPC or as culpable homicide not amounting to murder under Section 304 Part II IPC.
Whether the return with a weapon after a short interval constitutes pre‑meditation sufficient for Section 34.

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 302, s. 304 Part II, s. 323, s. 34, s. 504, s. 506

Subjects

murdercommon intentionSection 34 IPCpremeditationknife assaultappellate jurisdictionculpable homicide

Judgment

[2019] 2 S.C.R. 887 887

ASIF KHAN A
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal Nos. 286-288 of 2019)
MARCH 05, 2019 B
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Penal Code, 1860:
s. 302 read with s. 34 – Murder – Common intention –
Altercation between the parties after which accused no 1 and 2 C
came back and returned after 10 minutes with deadly weapons-
knife with a blade of 15.5 cm, by which the victim was stabbed resulting
in his death – Accused no. 2-appellant held the neck of the victim
and accused no 1 stabbed the victim – Trial court convicted the
accused no. 1 and 2 for offences punishable u/s. 304 Part II rw s.
34 and others were acquitted – However, the High Court convicted D
the accused no. 1 and 2 u/s. 302 rw s. 34 – SLP by accused no. 1
dismissed – Appeal by accused no. 2 – Held: Common intention of
the accused nos.1 and 2 is fully established by the circumstances
and events unfolded in the prosecution story, duly corroborated by
the prosecution witnesses – It cannot be said that there was no E
meeting of minds between accused nos.1 and 2, when they returned
with weapon and stabbed the victim – Manner of incident also
indicate that both had common intention, thus, the High Court did
not commit any error in convicting the accused no.2 u/s. 302/34.
Dismissing the appeals, the Court
F
HELD: 1.1 The High Court noticed that the accused Nos.1
and 2 after the first incident went back on a motorcycle and came
after 10 minutes with deadly weapon, i.e., knife, which had a blade
of 15.5 cm. There can be no doubt about the intention of the
accused, who held the neck of the deceased and accused No.1
stabbed. PW5, doctor, who conducted the post-mortem proved G
in his evidence that the injury was sufficient in the normal course
to cause death. The submission of the appellant that injury was
not on vital part cannot be accepted. The judgment of the High
Court convicting the accused no. 1 u/s. 302 has already been
H
887
888 SUPREME COURT REPORTS [2019] 2 S.C.R.

A upheld by dismissing the SLP on behalf of accused no. 1. Thus,
there is no reason to take a different view to one taken by the
High Court that accused were liable for conviction u/s. 302.
[Para 13, 14][894-F-G; 895-D]
1.2 The appellant submitted that there could be no
B conviction under Section 34 for the appellant since there is no
evidence of any pre-planned murder of deceased; and that in the
First Information Report, it has mentioned that appellant had held
hands of the deceased and in the evidence before the court, it
was mentioned that appellant held the neck of the deceased. All
the three eye-witnesses, PW1, PW2 and PW4, who appeared
C before the court have stated that appellant caught hold of the
neck of victim and accused No.1 assaulted him by knife.
[Para 18][898-A-C]
1.3 Looking into the evidence in the instant case, it is clear
that common intention of the accused Nos.1 and 2 is fully
D established by the circumstances and events unfolded in the
prosecution story, duly corroborated by PW1, PW2 and PW4. After
altercation took place between accused No.1 and informant, the
deceased-brother of informant, came and intervened in the matter,
due to which the accused Nos.1 and 2 immediately returned from
the spot in a motorcycle and came back after 10 minutes armed
E with deadly weapon. When both the accused returned after
altercation with two brothers-informant and deceased, and came
back after 10 minutes armed with weapon, common intention is
clearly established and it cannot be said that there was no meeting
of minds between accused Nos.1 and 2, when they returned with
F weapon and stabbed the deceased. The accused No.2 held the
neck of the deceased when accused No.1 stabbed him by knife.
The manner of incident also indicate that both had common
intention, hence, the High Court did not commit any error in
convicting the accused No.2 under Section 302 read with
Section 34. [Para 28][903-F-H; 904-A, B]
G
Kulwant Rai v. State of Punjab (1981) 4 SCC 245;
Ramesh Vithalrao Thakre and Another v. State of
Mahrashtra (2009) 17 SCC 438; Surain Singh v. State
of Punjab (2017) 5 SCC 796 – distinguished.

H
ASIF KHAN v. STATE OF MAHARASHTRA & ANR. 889

Mehbub Shah v. Emperor AIR 1945 PC 118; A
Pandurang and Others v. State of Hyderabad AIR 1955
SC 216 : [1955] SCR 1083; Mohan Singh and Anr. v.
State of Punjab AIR 1963 SC 174 : [1962] Suppl. SCR
848; Narinder Singh and Another v. State of Punjab
(2000) 4 SCC 603 : [2000] 2 SCR 1022; Raju B
Pandurang Mahale v. State of Mahrashtra and Another
(2004) 4 SCC 371 : [2004] 2 SCR 287 ; Murari Thakur
and Another v. State of Bihar (2009) 16 SCC 256 :
[2006] 10 Suppl. SCR 988 - referred to.
Case Law Reference C
(1981) 4 SCC 245 distinguished. Para 15
(2009) 17 SCC 438 distinguished. Para 16
(2017) 5 SCC 796 distinguished. Para 17
AIR 1945 PC 118 referred to. Para 21 D
[1955] SCR 1083 referred to. Para 22
[1962] Suppl. SCR 848 referred to. Para 3
[2000] 2 SCR 1022 referred to. Para 24
[2004] 2 SCR 287 referred to. Para 27 E
[2006] 10 Suppl. SCR 988 referred to. Para 27
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 286-288 of 2019.
From the Judgment and Order dated 05.05.2014 of the High Court F
of Judicature at Bombay, Aurangabad Bench in Criminal Appeal Nos.
225 of 2012, 241 of 2012 and 461 of 2012.
Anurag Kishore, Abhishek Chaudhary, Adarsh Upadhayay,
Harshavardhan Jha, Garvesh Kabara, S. P. Vishnu Prasath, Advs. for
the Appellant. G
Nishant Ramakantrao Katneshwarkar, Anoop Kandari,
Mohd. Parvez Dabas, Uzmi Jameel Husain, Shakil Ahmed Syed,
Daanish Ahmad Syed, Advs. for the Respondents.

H
890 SUPREME COURT REPORTS [2019] 2 S.C.R.

A The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. These appeals have been filed against the judgment of the High
Court dated 05.05.2014 dismissing the Criminal Appeals filed by the
appellant and allowing the Criminal Appeals of the complainant as well
B as that of the State of Maharashtra.
2. As per the prosecution story on 21.10.2010 at about 8 AM in
the morning, the complainant was standing at Bazar Pati Chowk and his
brother Sardarkha was standing at some distance. At that time, it was
alleged that all the accused came there and asked the complainant to
C allow them to take water from the common well for one day due to load
shedding. Complainant refused to give excess water and asked the
accused to take water by rotation. At that time, they abused complainant
and accused No.1, i.e. Nasibkha assaulted him. His brother Sardarkha
who was standing at some distance, intervened. Thereafter, the accused
Nos.1 and 2, i.e., Nasibkha and Asifkha went to their house on motorcycle
D and immediately returned. The accused No.1 challenged Sardarkha to
stop him from drawing water. Sardarkha tried to convince him. Accused
No.1 assaulted Sardarkha by knife on his right rib and accused No.2
caught hold the neck of Sardarkha. The accused Nos. 3 and 4, i.e.,
Jabbarkha and Ansarkha punched the complainant. Immediately after
E the incidents, Sardarkha was taken to Ghati Hospital, Aurangabad by
Jeep and complainant and others followed him in another jeep. He was
admitted in the hospital at about 10 AM, where the doctor declared him
dead.
3. A First Information Report was lodged on the same day under
Sections 302, 323, 504, and 506 read with Section 34 of the Indian Penal
F Code against all the accused, who were named in the FIR. Accused
were arrested on 22.10.2010. On 26.10.2010, accused No.1 gave a
memorandum of statement under Section 27 of the Indian Evidence Act
and in consequent to the said memorandum weapon was recovered.
After completion of the investigation, charge sheet was filed under the
G aforesaid sections.
4. All the accused were sent for trial. In the trial, complainant
PW1 Kalekhan proved the prosecution case, other eye-witnesses - PW2
Salimkha Abbaskha Pathan and PW4, Ajijkha Sardarkha also proved
the prosecution story, PW5, Dr. Navinkumar Varma proved the post-
mortem report and PW6 and PW7 were panch witnesses. There were
H
ASIF KHAN v. STATE OF MAHARASHTRA & ANR. 891
[ASHOK BHUSHAN, J.]

other formal witnesses, who deposed before the trial court. The trial A
court, vide its judgment dated 29.02.2012, after discussing the
role of each of the accused came to the following conclusion in Paragraph
No. 39:-
“39. There are four accused in the crime and as per the
case of the prosecution, they shared common intention to B
commit offence. If the evidence of prosecution witnesses
in this regard is perused, P.W.1, 2 and 4, who are eye-
witnesses, categorically stated that accused No.2 caught
hold the neck of Sardarkha and accused No.1 inflicted knife
blow on right rib. They have stated that accused Nos.3
and 4 were present and they assaulted complainant by fist C
and blows. There is no evidence that accused Nos.3 and 4
provoked accused Nos.1 and 2 to attack. There is no
evidence of any prior concert or meeting of mind of accused
Nos.3 and 4 in sharing common intention of accused Nos.1
and 2. Before convicting accused with the aid of Section D
34 of Indian Penal Code, it has to be proved that there was
pre-arranged plan to commit the offence………”
5. The trial court held that complicity of the accused Nos.1 and 2,
i.e., accused Nasibkha and Asif Khan is established. The trial court,
however, came to the conclusion that accused Nos.1 and 2 were not E
guilty of having committed offence under Section 302 read with 34 IPC,
however, they can be convicted of having committed the offence
punishable under Section 304 Part II read with Section 34, the accused
Nos.1 and 2 were sentenced to undergo imprisonment for 10 years and
to pay fine of Rs.5,000/-. All the accused were acquitted of the offence
punishable under Sections 323, 504 and 506 read with Section 34 of F
Indian Penal Code. Accused Nos. 3 and 4 were acquitted.
6. Against the judgment of the trial court dated 29.02.2012, accused,
the complainant and the State filed appeals. Accused were aggrieved by
their conviction under Section 304 Part II, the complainant and the State
were aggrieved of acquittal of accused under Section 302 read with G
Section 34. The High Court after considering the entire evidence on
record came to following conclusions in Paragraph No.23 and 30:-
“23. After analytical survey of the prosecution case, there is no
doubt in our mind that accused no. 2 Asifkha caught hold neck of
deceased Sardarkha and thereupon accused no. 1 Nasibkha made H
892 SUPREME COURT REPORTS [2019] 2 S.C.R.

A a murderous assault by means of knife on deceased Sardarkha.
Therefore, accused no. 1 Nasibkha and accused no. 2 Asifkha
are held to be guilty of homicidal death of deceased Sardarkha.
30. True it is, they were demanding water for one more day from
the first informant, which was refused by him, thereby enraging
B them to hurl abuses and picked up a quarrel with PW 1 Kalekha,
which was intervened by the deceased. Refusal of giving water
for one more day culminating into giving abuses to PW 1 Kalekha
and even quarrel with him, may be most natural, however, on the
intervention of the deceased it was pacified. Not only that,
consistent evidence of the prosecution shows that thereafter both
C accused no. 1 Nasibkha and accused no. 2 Asifkha left the place
on motor cycle.
They arrived at the spot after ten minutes. This period was enough
for their cooling in respect of the first incident, however, the
prosecution evidence shows that after ten minutes, they, not only
D returned to the spot, but they returned with deadly knife with them.
This act on the part of accused nos. 1 and 2 clearly establishes
that with premeditation they returned to the spot. They returned
to the spot with a specific intention. Further, from the evidence, it
is clear that on reaching to the spot, they immediately caught
E deceased Sardarkha and gave knife blow as per the role ascribed
to them by the prosecution witnesses. This fact clearly establishes
that both the accused nos. 1 and 2 were nursing grudge against
the deceased, because at the first instance it was the deceased
who rescued PW 1 Kalekha from the quarrel with them.”

F 7. The High Court did not approve the reasoning of the trial court
that there was no intention of the accused to kill the deceased. The High
Court allowed the appeals of the State and the complainant and convicted
the accused Nos.1 and 2 under Section 302 read with Section 34 IPC.
The criminal appeals filed by the accused were dismissed. Acquittal of
accused Nos.3 and 4 was confirmed. Aggrieved against the judgment of
G the High Court, these appeals have been filed.
8. This Court heard the Special Leave Petition on 06.02.2015 and
dismissed the Special Leave Petition qua petitioner No.1, i.e. Nasibkhan.
Notice was issued in the Special Leave Petition insofar as petitioner
No.2, i.e., Asif Khan is concerned. These appeals, thus, are considered
H only on behalf of Asif Khan.
ASIF KHAN v. STATE OF MAHARASHTRA & ANR. 893
[ASHOK BHUSHAN, J.]

9. Learned counsel for the appellant submits that an altercation A
took place between the parties and consequent to that incident has
happened due to sudden fight between the parties and there was no
intention on the part of the accused to kill the deceased. He submits that
at best the conviction could have been recorded only under Section 304
Part II as has been held by the trial court. He further submits that with
B
regard to appellant, in the First Information Report, although it is alleged
that appellant hold hands of the deceased but in the evidence, it is sought
to be stated that appellant held the neck of the deceased. Learned counsel
for the appellant further submits that there could be no conviction under
Section 34 for the appellant since there is no evidence of any pre-planned
murder of deceased. Learned counsel for the appellant has placed C
reliance on judgments of this Court in Kulwant Rai Vs. State of Punjab,
(1981) 4 SCC 245; Ramesh Vithalrao Thakre and Another Vs.
State of Mahrashtra, (2009) 17 SCC 438 and Surain Singh Vs.
State of Punjab, (2017) 5 SCC 796.
10. Learned counsel for the State refuting the submission of the D
counsel for the appellant contends that High Court has rightly convicted
the appellant under Section 302 read with Section 34 as after the first
incident, when there was altercation between the parties, accused Nos.1
and 2 went back on the motorcycle and returned after 10 minutes with
deadly weapon, i.e., knife, by which the deceased was stabbed. The
appellant held the neck of the deceased and accused No.1 stabbed the E
deceased. The crime was committed by accused Nos.1 and 2 with
common intention, hence they have been rightly convicted under Section
302. It is submitted that present is not a case for conviction under Section
304 Part II, as the accused after first incident returned and came back
with deadly weapon and with intention to kill has stabbed the deceased. F
All the eye-witnesses have proved the prosecution case.
11. We have considered the submissions of the learned counsel
for the parties and have perused the records.
12. The first submission of the learned counsel for the appellant is
that, at best, the present was a case for conviction under Section 304
G
part II and it was not a case for conviction under Section 302. The High
Court has elaborately considered the evidence to find out as to whether
conviction in the present case ought to have been under Section 302 or
under Section 304 Part II as held by the trial court. The consideration of
the High Court in Paragraph Nos. 23 and 30 have already been extracted
H
894 SUPREME COURT REPORTS [2019] 2 S.C.R.

A above. With regard to observation of trial court that it is not proved that
accused had intention to kill the deceased, the High Court held following
in Paragraph Nos.33 and 34:-
“33. In the present case, the learned trial court has observed in its
judgment paragraph 43 and recorded a finding that, there was an
B intention on the part of accused nos. 1 and 2 to cause injury to the
deceased, however, the learned court below in one breath gives
reasoning that, from the material on record, it does not appear
that the intention of the accused was to kill the deceased; however,
in the next breath, the learned Judge reasoned that, accused no. 1
was armed with knife, blade of which itself was 15.5 cm. in length,
C and therefore, the accused should have been aware that if he
stabbed the deceased, he may be acting in such a manner that the
injury he caused is likely to cause death, and still the learned court
below has acquitted accused nos. 1 and 2 under Section 302 of
the Indian Penal Code.
D 34. This appreciation on the part of learned court below, in our
view, is perverse. Once the intention is established, and in the
light of medical evidence and existence of the injury found on the
dead body of Sardarkha, there is no escape but to record a finding
of guilt against the accused nos. 1 and 2 for having committed the
offence under Section 302 of the Indian Penal code.
E
The learned counsel for accused nos. 1 and 2 found it very difficult
and could not bring their case in any of the Exceptions of Section
300 of the Indian Penal Code.”
13. High Court has also noticed that the accused Nos.1 and 2
after the first incident went back on a motorcycle and came after
F 10 minutes with deadly weapon, i.e., knife, which had a blade of
15.5 cm. There can be no doubt about the intention of the accused, who
held the neck of the deceased and accused No.1 stabbed. PW5,
Dr. Naveenkumar Varma, who conducted the post-mortem proved in
his evidence that Injury No.17 was sufficient in the normal course to
G cause death. Learned counsel for the appellant submitted that the injury,
which was caused on right flank region in right hypochondric region was
not on a vital part. The High Court while considering the injury has made
following observations:-

H
ASIF KHAN v. STATE OF MAHARASHTRA & ANR. 895
[ASHOK BHUSHAN, J.]

“The said injury is mentioned at column 17 in the postmortem A
report Exh. 56, duly proved by Dr. Navinkumar Varma (PW 5).
According to column no. 20 of postmortem report Exh. 56, right
9th rib cut from lower margin in 0.5 cm. area cut ends shows
infiltration staining.
The doctor also noted haematoma on right flank region around B
stab injury dark red in colour. Liver stab wound of 3 x 0.3 x 11
cm. in right lobe of liver, which he mentioned in column no. 21 of
postmortem report.
According to autopsy surgeon Dr. Varma, the cause of death
is, shock and haemorrhage due to stab injury to liver. The doctor C
found that the injury was antemortem.”
14. The submission of the appellant that injury was not on vital
part cannot be accepted. It is further to be noted that judgment of the
High Court convicting the accused No.1 under Section 302 has already
been upheld by dismissing the Special Leave Petition on 06.02.2015 on
D
behalf of Nasib Khan. We, thus, do not find any reason to take a different
view to one taken by the High Court that accused were liable for
conviction under Section 302. In Kulwant Rai (supra), one dagger
blow was given in epigastrium area. This Court noted that there was no
altercation, there was no premeditation and the case was of a hit and
run. In the above circumstances, the court held that it was a case, E
which fall under Section 304 Part II, in paragraph No.3, following has
been held:-
“3. When the matter was before the High Court it was strenuously
urged that in the circumstances of the case para 1 of Section 300
would not be attracted because it cannot be said that the accused F
had the intention to commit murder of the deceased. In fact, that
is conceded. More often, a suggestion is made that the case would
be covered by Para 3 of Section 300 of the Indian Penal Code in
that not only the accused intended to inflict that particular injury
but the injury intended to be inflicted was by objective medical
test found to be sufficient in the ordinary course of nature to cause G
death. The question is in the circumstance in which the offence
came to be committed, could it ever be said that the accused
intended to inflict that injury which proved to be fatal. To repeat,
there was an altercation. There was no premeditation. It was
something like hit and run. In such a case, Para 3 of Section 300 H
896 SUPREME COURT REPORTS [2019] 2 S.C.R.

A would not be attracted because it cannot be said that the accused
intended to inflict that particular injury which was ultimately found
to have been inflicted. In the circumstances herein discussed, it
would appear that the accused inflicted an injury which he knew
to be likely to cause death and the case would accordingly fall
under Section 304 Part II, Indian Penal Code.”
B
15. The above case is clearly distinguishable since present is a
case where accused Nos.1 and 2 after first incident, in which there was
altercation with the informant and deceased, returned back on motorcycle
and came back after 10 minutes alongwith weapon, hence the above
judgment is not applicable. Coming to case relied on by appellant, i.e.,
C Ramesh Vithalrao Thakre (supra). In the above case, the accused
had previous enmity with one Ashok and they have gone to inflict injury
on Ashok. Sister of Ashok, Rekha came in between and she received
single injury on her chest. In the above circumstances, this Court held
that case will fall under Section 304 Part II of IPC. In Paragraph Nos.
D 9 and 11, following has been held:-
“9. There is no denying the fact that one single injury was caused
to the deceased by Ramesh when Rekha intervened to save her
brother Ashok from being assaulted. The primary target of Ramesh
was Ashok, who got saved when Rekha received the injury on
E her chest. After causing the single injury to Rekha, it is the
prosecution case itself, that Ramesh did not cause any other injury
to Rekha nor even to Ashok, PW 1.
11. We, accordingly set aside the conviction and sentence of
Ramesh for the offence under Sections 302/34 IPC and instead
F find him guilty for the offence under Section 304 Pt. II IPC and
sentence him to five years’ rigorous imprisonment and a fine of
Rs. 4000. In default of payment of fine, the appellant shall suffer
rigorous imprisonment for a period of one year. The fine shall be
paid within three months and on realisation shall be paid to the
mother of the deceased, PW 2, Janabai.”
G
16. The above case is clearly distinguishable since in that case,
they had not gone to inflict injury on the deceased sister of Ashok rather
they had gone to inflict injury on Ashok and since she intervened to save
her brother and got assaulted, it was not pre-planned. But, in the present

H
ASIF KHAN v. STATE OF MAHARASHTRA & ANR. 897
[ASHOK BHUSHAN, J.]

case accused Nos.1 and 2 after first incident, returned back on motorcycle A
and came back after 10 minutes alongwith weapon, hence the above
judgment is not applicable. The third case relied by the learned counsel
for the appellant Surain Singh (supra) was a case where this Court
held conviction under Section 304 Part II on the ground that attack was
not premeditated and preplanned. In Paragraph Nos. 21 and 23, following
B
has been held:-
“21. In the instant case, it is evident from the materials on record
that there was bitter hostility between the warring factions to which
the accused and the deceased belonged. Criminal litigation was
going on between these factions. It is also proved from the material
on record that the attack was not premeditated and preplanned. C
Both the parties were present in the Court of Executive Magistrate,
Faridkot at the relevant time with regard to the proceedings under
Sections 107/151 of the Code. When the appellant-accused
objected to the presence of a member of the opposite side, the
scuffle started between the parties which resulted into death of D
two persons. The conduct of the appellant-accused that he at
once took out his kirpan and started giving blows to the opposite
party proves that the attack was not premeditated and it was
because of the spur of the moment and without any intention to
cause death. The occasion for sudden fight must not only be
sudden but the party assaulted must be on an equal footing in E
point of defence, at least at the onset.
23. Thus, if there is intent and knowledge then the same would be
a case of Section 304 Part I and if it is only a case of knowledge
and not intention to cause murder and bodily injury then the same
would fall under Section 304 Part II. We are inclined to the view F
that in the facts and circumstances of the present case, it cannot
be said that the appellant-accused had any intention of causing
the death of the deceased when he committed the act in question.
The incident took place out of grave and sudden provocation and
hence the accused is entitled to the benefit of Section 300
G
Exception 4 IPC.”
17. The above case is also clearly distinguishable and not applicable
in the facts of the present case.

H
898 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 18. Now, we come to conviction of the appellant under
Section 34. The submission made by the appellant is that there could be
no conviction under Section 34 for the appellant since there is no evidence
of any pre-planned murder of deceased. Insofar as the submission of
the learned counsel for the appellant that in the First Information Report,
it has mentioned that appellant had held hands of the deceased and in
B
the evidence before the Court, it was mentioned that appellant held the
neck of the deceased. All the three eye-witnesses, PW1, PW2 and
PW4, who appeared before the Court have stated that Asif Khan caught
hold of the neck of Sardarkha and accused No.1 assaulted him by knife.
Paragraph No. 4 of the examination-in-chief of PW1 is as follows:-
C “4. After sometime they came back. At that time accused No.1
told me that how you will not allow me to take more water, I will
see you. At that time accused No.2 Asifkhan caught hold neck of
Sardarkhan and accused No.1 Nasibkhan assaulted him by knife
on the right side of his stomach……”
D 19. In the cross-examination, PW1 again stated that accused No.2
caught hold of neck of his brother. The evidence of PW2 and PW4 is
also consistent that Asif Khan caught hold the neck of Sardarkha and
accused No.1 assaulted Sardarkha on his right rib by knife. Whether, in
the facts of the present case and the evidence on record, the appellant
E could be convicted under Section 302 with aid of Section 34 is a question
to be answered.
20. The test for applicability of Section 34 in a fact situation of an
offence has been clearly and categorically laid down by this Court.
Section 34 of IPC provides as follows:-
34. Acts done by several persons in furtherance of common
F intention.— When 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.
21. The judgment of Privy Council in Mehbub Shah Vs.
G Emperor, AIR 1945 PC 118 has elaborately considered the ingredients
under Section 34 and the said judgment of Privy Council has been relied
on and approved by this Court time and again. The Privy Council in
above case laid down that under Section 34, the essence of that liability
is to be found in the existence of a common intention animating the
H accused leading to the doing of a criminal act in furtherance of such
intention. In Paragraph No.13, following has been laid down:-
ASIF KHAN v. STATE OF MAHARASHTRA & ANR. 899
[ASHOK BHUSHAN, J.]

“13. In 1870, it was amended by the insertion of the words “in A
furtherance of the common intention of all” after the word “persons”
and before the word “each,” so as to make the object of the
section clear. Section 34 lays down a principle of joint liability in
the doing of a criminal act. The section does not say “the common
intentions of all” nor does it say “an intention common to all.”
B
Under the section, the essence of that liability is to be found in the
existence of a common intention animating the accused leading to
the doing of a criminal act in furtherance of such intention. To
invoke the aid of Section 34 successfully, it must be shown that
the criminal act complained against was done by one of the
accused persons in the furtherance of the common intention of C
all; if this is shown, then liability for the crime may be imposed on
any one of the persons in the same manner as if the act were
done by him alone. This being the principle, it is clear to their
Lordships that common intention within the meaning of the section
implies a pre-arranged plan, and to convict the accused of an
D
offence applying the section it should be proved that the criminal
act was done in concert pursuant to the prearranged plan. As has
been often observed, it is difficult if not impossible to procure
direct evidence to prove the intention of an individual; in most
cases it has to be inferred from his act or conduct or other relevant
circumstances of the case.” E
22. In Pandurang and Others Vs. State of Hyderabad, AIR
1955 SC 216, Justice Vivian Bose, speaking for the Bench considered
the ingredients of Section 34 and relying on Privy Council judgment in
Mehbub Shah Vs. Emperor (supra) laid down following in Paragraph
Nos. 32 to 34:- F
“32. As we have just said, the witnesses arrived at a time when
the beating was already in progress. They knew nothing about
what went before. We are not satisfied that Tukaram is proved to
have done anything except be present, and even if it he accepted
that Nilia aimed a blow at Ramchander’s thigh he was so half
hearted about it that it did not even hit him; and in Pandurang G
case, though armed with a lethal weapon, he did no more than
inflict a comparatively light head injury. It is true they all ran away
when the eye-witnesses arrived and later absconded, but there is
nothing to indicate that they ran away together as a body, or that
they met afterwards. Rasikabai says that the “accused” raised H
900 SUPREME COURT REPORTS [2019] 2 S.C.R.

A their axes and sticks and threatened her when she called out to
them, but that again is an all embracing statement which we are
not prepared to take literally in the absence of further particulars.
People do not ordinarily act in unison like a Greek chorus and,
quite apart from dishonesty, this is a favourite device with witnesses
who are either not mentally alert or are mentally lazy and are
B
given to loose thinking. They are often apt to say “all” even when
they only saw “some” because they are too lazy, mentally, to
differentiate. Unless therefore a witness particularises when there
are a number of accused it is ordinarily unsafe to accept omnibus
inclusions like this at their face value. We are unable to deduce
C any prior arrangement to murder from these facts.
33. Now in the case of Section 34 we think it is well established
that a common intention presupposes prior concert. It requires a
pre-arranged plan because before a man can be vicariously
convicted for the criminal act of another, the act must have been
D done in furtherance of the common intention of them all: Mahbub
Shah v. King Emperor. Accordingly there must have been a prior
meeting of minds. Several persons can simultaneously attack a
man and each can have the same intention, namely the intention
to kill, and each can individually inflict a separate fatal blow and
yet none would have the common intention required by the section
E because there was no prior meeting of minds to form a pre-
arranged plan. In a case like that, each would be individually liable
for whatever injury he caused but none could be vicariously
convicted for the act of any of the others; and if the prosecution
cannot prove that his separate blow was a fatal one he cannot be
F convicted of the murder however clearly an intention to kill could
be proved in his case: Barendra Kumar Ghosh v. King- Emperor
and Mahbub Shah v. King-Emperor. As Their Lordships say in
the latter case, “the partition which divides their bounds is often
very thin: nevertheless, the distinction is real and substantial, and
if overlooked will result in miscarriage of justice”.
G
34. The plan need not be elaborate, nor is a long interval of time
required. It could arise and be formed suddenly, as for example
when one man calls on bystanders to help him kill a given individual
and they, either by their words or their acts, indicate their assent
to him and join him in the assault. There is then the necessary
H
ASIF KHAN v. STATE OF MAHARASHTRA & ANR. 901
[ASHOK BHUSHAN, J.]

meeting of the minds. There is a pre-arranged plan however hastily A
formed and rudely conceived. But pre-arrangement there must
be and premeditated concert. It is not enough, as in the latter
Privy Council case, to have the same intention independently of
each other, e.g., the intention to rescue another and, if necessary,
to kill those who oppose.”
B
23. The Constitution Bench of this Court in Mohan Singh and
Anr. Vs. State of Punjab, AIR 1963 SC 174 had again reiterated the
ingredients of Section 34. Constitution Bench has also relied on and
approved the Privy Council judgment in Mehbub Shah Vs. Emperor
(supra) noticing the essential constituents of vicarious liability under
Section 34, Justice Gajendragadkar speaking for the Bench laid down C
following in Paragraph No.13:-
“13…………………………………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 D
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 E
persons sharing the same common intention is one of the features
of Section 34. In some ways the two sections are similar and in
some cases they may overlap. But, nevertheless, the common
intention which is the basis of Section 34 is different from the
common object which is the basis of the composition of an unlawful
assembly. Common intention denotes action-in-concert and F
necessarily postulates the existence of a prearranged plan and
that must mean a prior meeting of minds. It would be noticed that
cases to which Section 34 can be applied disclose an element of
participation in action on the part of all the accused persons. The
acts may be different; may vary in their character, but they are all
G
actuated by the same common intention. It is now well-settled
that the common intention required by Section 34 is different from
the same intention or similar intention. As has been observed by
the Privy Council in Mahbub Shah v. King-Emperor4 common
intention within the meaning of Section 34 implies a pre-arranged
H
902 SUPREME COURT REPORTS [2019] 2 S.C.R.

A plan, and to convict the accused of an offence applying the section
it should be proved that the criminal act was done in concert
pursuant to the pre-arranged plan and that the inference of common
intention should never be reached unless it is a necessary inference
deducible from the circumstances of the case.
B 24. The principles as noticed above have been reiterated time and
again. We may refer to the judgment of this Court in Narinder Singh
and Another Vs. State of Punjab, (2000) 4 SCC 603, the facts in the
above case has been noticed in Paragraph No.5 of the judgment, which
are to the following effect:-
C “5. On 6-11-1989 Gurdev Singh with his son Hardip Singh (PW
2) was going on a bicycle to Village Jagatpur in order to withdraw
the money from his account in the Cooperative Bank there. Hardip
Singh was pedalling the cycle while Gurdev Singh was sitting on
its carrier. Around 12 o’clock when they reached the metalled
road near the field of one Gurmej Singh, resident of Jagatpur, they
D saw the appellants sitting near a tree. They got up and intercepted
Gurdev Singh and Hardip Singh. Both got down from their cycle.
Appellant Narinder Singh proclaimed that they would teach Gurdev
Singh a lesson as he had not vacated the office of Granthi of the
Gurudwara as per their demand. He grabbed Gurdev Singh by his
E arms while the second appellant Ravinder Singh alias Khanna
took out a gatra kirpan, which he was wearing and stabbed Gurdev
Singh with the gatra kirpan on the left side of his neck. Gurdev
Singh after receiving the kirpan-blow fell down…………………”
25. The role assigned was that he grabbed Gurdev Singh by his
arms while the second appellant stabbed Gurdev Singh with kirpan. In
F
Paragraph No.5, following has been stated:-
“5. …………………………He grabbed Gurdev Singh by his
arms while the second appellant Ravinder Singh alias Khanna
took out a gatra kirpan, which he was wearing and stabbed Gurdev
Singh with the gatra kirpan on the left side of his neck. Gurdev
G
Singh after receiving the kirpan-blow fell down…………………”
26. This Court in Paragraph No.16 of the judgment held that both
the appellants had committed the murder of Gurdev Singh. It was held
that it is not material to bring the case under Section 34, as to who
inflicted the fatal blow, following was laid down in Paragraph No.16:-
H
ASIF KHAN v. STATE OF MAHARASHTRA & ANR. 903
[ASHOK BHUSHAN, J.]

“16. ……………Both the appellants committed the murder of A
Gurdev Singh, Granthi in furtherance of their common intention.
It was submitted by Mr Gupta that Narinder Singh could not have
been convicted with the aid of Section 34 as this section is nowhere
mentioned in the impugned judgment. Mention of the section in
the judgment is not the requirement of law to convict a person. If
B
the ingredients of the offence are present, conviction can be made.
It is not material to bring the case under Section 34 IPC as to
who, in fact, inflicted the fatal blow. The High Court has rightly
interfered in the matter and sentenced the appellants accordingly.”
27. To the same effect is the judgment of this Court in Raju
Pandurang Mahale vs. State of Mahrashtra and Another, (2004) C
4 SCC 371. Another judgment, which is relevant for the present case
is the case of Murari Thakur and Another Vs. State of Bihar, (2009)
16 SCC 256. In the above case, the main plea of the accused was that
he had caught the legs of the deceased whereas third accused cut him
with his sharp edged weapon. In paragraph No.7, following was laid D
down:-
“7. We agree with the view taken by the High Court and the trial
court that the accused had committed murder of deceased Bal
Krishna Mishra after overpowering him in furtherance of their
common intention on 26-8-1998 at 4 p.m. No doubt it was Sunil E
Kumar, who is not before us, who cut the neck of the deceased
but the appellants before us (Murari Thakur and Sudhir Thakur)
also participated in the murder. Murari Thakur had caught the
legs of the deceased and Sudhir Thakur sat on the back of the
deceased at the time of commission of this murder. Hence, Section
34 IPC is clearly applicable in this case.” F
28. When we look into the evidence in the present case, in light of
the principles as enunciated above, it is clear that common intention of
the accused Nos.1 and 2 is fully established by the circumstances and
events unfolded in the prosecution story, duly corroborated by PW1,
PW2 and PW4. After altercation took place between accused No.1 and G
informant, the deceased, who was brother of informant came and
intervened in the matter, due to which the accused Nos.1 and 2
immediately returned from the spot in a motorcycle and came back after
10 minutes armed with deadly weapon. When both the accused returned
after altercation with two brothers – informant and deceased and came
H
904 SUPREME COURT REPORTS [2019] 2 S.C.R.

A back after 10 minutes armed with weapon, common intention is clearly
established and it cannot be said that there was no meeting of minds
between accused Nos.1 and 2, when they returned with weapon and
stabbed the deceased. The accused No.2 held the neck of the deceased
when accused No.1 stabbed him by knife. The manner of incident also
B indicate that both had common intention, hence, High Court did not commit
any error in convicting the accused No.2 under Section 302 read with
Section 34.
29. We, thus, do not find any merit in the appeals, the appeals are
dismissed.

C Nidhi Jain Appeals dismissed.

D

E

F

G

H