Supreme Court of India
MUNNILAL S/O GOKUL TELIversusSTATE OF M.P.
- Citation
- 2009 INSC 43
- Decided
- 20 January 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The appellant cannot be held guilty under Section 34 IPC as common intention was not proved, and his conviction is set aside.
Summary
The appellant, Munni Lal, was convicted along with three co‑accused for the murder of Ram Kishore under Sections 302 and 34 of the Indian Penal Code. While the other three accused were armed, Munni Lal was unarmed and the prosecution alleged that he pulled the victim's leg, contributing to the death. The trial court and the Madhya Pradesh High Court upheld the conviction, holding that Section 34 applied despite the lack of direct evidence of his participation. On appeal, the Supreme Court examined whether the presence of the appellant with armed co‑accused and the unproven allegation of pulling the leg satisfied the requirements of common intention under Section 34. The Court found that no overt act was attributed to Munni Lal, that he was not armed, and that the alleged act was not established, thus common intention could not be inferred. Consequently, the conviction under Section 34 was set aside and the appellant was ordered to be released. The appeal was allowed.
Issues considered
- Whether Section 34 IPC applies to an unarmed accused who was merely present with armed co‑accused.
- Whether the prosecution proved a common intention among all accused sufficient to sustain a conviction under Section 34.
- Whether the alleged act of pulling the victim's leg by the appellant was established by evidence.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 34
Subjects
MurderCommon intentionSection 34 IPCJoint liabilityConviction reversalEvidenceOvert actUnarmed accused
Judgment
[2009) 1 S.C.R. 393
~ MUNNILAL S/O GOKUL TELi A
"' V.
""" STATE OF M.P.
(Criminal Appeal No. 106 of 2009)
JANUARY 20, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
' •
Parial Code, 1860 :
- c
'
s. 302134 - Murder- By four accused - Two accused
armed with deadly weapons, while the other two unarmed -
Conviction of all the accused u/s. 302134 - Appellant-accused
was unarmed - Allegation against him that he pulled the leg
of the deceased - High Court dismissing his appeal - On D
~.
appeal, held: Mere fact of being in company of armed
accused, not sufficient to attract s. 34 - Eye-witnesses not
attributing any overt act to the unarmed accused - Allegation
of puffing the leg of the deceased also not established.
s. 34 - Common intention - Applicability of - Discussed. E
Appellant-accused was alleged to have participated
- in the act of causing death of a person alongwith three
, co-accused. Though he was not armed, allegation against
"
him was that he had pulled the leg of the deceased. Trial F
Court convicted him, alongwith the co-accused uls.
302134 IPC. High Court affirmed his conviction negating
the plea that s. 34 was not applicable in the case of the
appellant. Hence the present appeal.
Allowing the appeal, the Court G
-. .... HELD: 1. In the peculiar facts of the case, the
appellant cannot be held guilty by application of Section
. 34 IPC. The evidence of PWs 2 and 3 did not attribute any
.' 393 H
394 SUPREME COURT REPORTS [2009] 1 S.C.R.
A overt act to the appellant. The mere fact that he was in
....
'
the company of the accused who were armed would not
be sufficient to attract Section 34 IPC. It is undisputed that
appellant was not armed and he had no animosity with
the deceased. This position is also accepted by the
B prosecution. Additionally, the stand that he pulled the leg
of the deceased has not been established. [Paras 10 and
9] [399-B; 398-G-H; 399-A]
2.1. Section 34 has been enacted on the principle of
joint liability in the doing of a criminal act. The Section is
C only a rule of evidence and does not create a substantive
offence. The distinctive feature of the Section is the
element of participation in action. The liability of one
person for an offence committed by another in the course
of criminal act perpetrated by several persons arises u/
D s. 34, if such criminal act is done in furtherance of a
common intention of the persons who join in committing
the crime. [Para 7] [397-E-F]
2.2. Direct proof of common intention is seldom
E available and, therefore, such intention can only be
inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances.
In order to bring home the charge of common intention,
the prosecution has to establish by evidence. Whether
F direct or circumstantial, there was plan or meeting of mind
of all the accused persons to commit the offence for
which they are charged with the aid of Section 34, be it
pre-arranged or on the spur of moment; but it must
necessarily be before the commission of the crime. The
true contents of the Section are that if two or more
G persons intentionally do an act jointly, the position in law
is just the same as if each of them has done it
individually by himself. [Para 7] [397-F-H; 398-A-B]
Ashok Kumar v. State of Punjab AIR 1977 SC 109, relied
H on. ,_,
MUNNILAL S/O GOKUL TELi v. STATE OF M.P. 395
Jt 2.3 The provision is intended to meet a case in which A
it may be difficult to distinguish between acts of
individual members of a party who act in furtherance of
the common intention of all or to prove exactly what part
was taken by each of them. For applying Section 34 it is
not necessary to show some overt act on the part of the B
accused. [Para 8] [398-E-F]
Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR
1993 SC 1899, relied on.
Case Law Reference: c
AIR 1977 SC 109 Relied on Para 7
AIR 1993 SC 1899 Relied on Para 8
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal D
"" No. 106 of 2009.
From the Judgment and Order dated 6. 7.2006 of the High
Court of Madhya Pradesh at Jabalpur in Crl. Appeal No. 639
of 1993.
E
Mulkh Raj Vij (AC.) for the Appellant.
Siddhartha Dave, Jemtiben and Vibha Datta Makhija for
the Respondent.
The Judgment of the Court was delivered by F
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
Bench of the Madhya Pradesh High Court upholding the
G
conviction of the appellant for offence punishable under Section
' ... 302 read with Section 34 of the Indian Penal Code, 1860 (in
short the 'IPC') as was awarded by learned Additional Sessions
Judge, Panna, in Sessions Trial No.15/1992.
3. Prosecution version as unfolded during trial is as H
396 SUPREME COURT REPORTS [2009] 1 S.C.R.
A follows: •
On 30th November, 1991 at about 5.00 p.m. Ram Kishore
(hereinafter referred to as the 'deceased') was murdered in an
agricultural field. First Information Report was lodged by Manik
Lal at Police Station, Pawal in the evening at about 7.00 p.m.
8
Offence was registered as Crime No.124/91 under Section
302/34 IPC. Deceased had eloped with Lalli, sister of the _
Ramcharan (A-2) and both of them had performed court
.
marriage. The court marriage was registered and Lalli was
living with Ramkishore. The appellant was having enmity on
C account of aforesaid incident. Deceased after eloping with Lalli
was living in some other village and returned to his village a
month before the incident. Ramkishore had gone to answer the
call of nature in the evening on 30.11.1991 at about 4.30 p.m.
towards the agricultural field of Gadka. Around 5 p.m. Phulla
D (A-3) armed with axe, Ramcharan (A-2) armed with sword
alongwith Dayashankar (A-1) and Munni Lal (A-4) went to the
field of Gadaka. Munni Lal and Dayashankar were barehanded.
Phulla gave axe blow on the head of deceased. Thereafter,
Dayashankar and Munnilal the co accused pulled the legs of
E deceased and threw him on the ground. Ramkishore fell on the
crops in the field. Ramcharan assaulted the deceased by
sword on the chest. Then he placed his sword on the chest of
the deceased. On account of beating he died. Police after
receiving information of the commission of crime carried out
F the investigation, arrested the accused persons and filed the
challan on 3.1.1"992 before the Court of Judicial Magistrate.
Case was committed to the Court of Sessions Judge. Trial
Court framed charges under Section 302/34 IPC against the
accused persons. After recording the evidence the trial Court
G convicted the accused persons for offence under Sections 302
read with Section 34 IPC and sentenced them as afore-noted.
Before the High Court the basic stand was that the
prosecution failed to prove common intention on the part of the
appellants and, therefore, Section 34 had no application. The
H
MUNNILAL S/O GOKUL TELi v. STATE OF M.P. 397
[DR. ARIJIT PASAYAT, J.]
A
individual act of the appellant should have been considered. A
Merely because the appellant had accompanied other accused
persons, that cannot be sufficient to warrant presumption of
common intention.
4. Learned counsel for the State submitted that the eye B
witnesses PWs 2 and 3 had described the act of each of the
appellants and the role ascribed to the appellant was that he
pulled the leg of the deceased as a result of which deceased
·"'
fell in the field of Masur crop and thereafter he was assaulted
by other accused persons. The appeal was dismissed
accepting the stand of the State.
c
5. Learned counsel for the appellant re-iterated the stand
... taken before the High Court and submitted that Section 34 IPC
has no application .
6. Learned counsel for the State on the other hand
supported the judgment.
D
7. Section 34 has been enacted on the principle of joint
liability in the doing of a criminal act. The Section is only a rule
of evidence and does not create a substantive offence. The E
distinctive feature of the Section is the element of participation
in action. The liability of one person for an offence committed
by another in the course of criminal act perpetrated by several
persons arises under Section 34 if such criminal act is done
in furtherance of a common intention of the persons who join F
in committing the crime. Direct proof of common intention is
seldom available and, therefore, such intention can only be
inferred from the circumstances appearing from the proved
facts of the case and the proved circumstances. In order to
.. ~
bring home the charge of common intention, the prosecution
has to establish by evidence, whether direct or circumstantial,
that there was plan or meeting of mind of all the accused
persons to commit the offence for which they are charged with
the aid of Section 34, be it pre-arranged or on the spur of
G
moment; but it must necessarily be before the commission of H
398 SUPREME COURT REPORTS [2009] 1 S.C.R.
A the crime. The true contents of the Section are that if two or
more persons intentionally do an act jointly, the position in law
is just the same as if each of them has done it individually by
himself. As observed in Ashok Kumar v. State of Punjab (AIR
1977 SC 109), the existence of a common intention amongst
B the participants in a crime is the essential element for
application of this Section. It is not necessary that the acts of
the several persons charged with commission of an offence
jointly must be the same or identically similar. The acts may be
different in character, but must have been actuated by one and
c the same common intention in order to attract the provision.
8. The Section does not say "the common intention of all",
nor does it say "and intention common to all". Under the
provisions of Section 34 the essence of the liability is to be
found in the existence of a common intention animating the
D accused leading to the doing of a criminal act in furtherance of
such intention. As a result of the application of principles
enunciated in Section 34, when an accused is convicted
under Section 302 read with Section 34, in law it means that
the accused is liable for the act which caused death of the
E deceased in the same manner as if it was done by him alone.
The provision is intended to meet a case in which it may be
difficult to distinguish between acts of individual members of a
party who act in furtherance of the common intention of all or
to prove exactly what part was taken by each of them. As was
F observed in Ch. Pu/la Reddy and Ors. v. State of Andhra
Pradesh (AIR 1993 SC 1899), Section 34 is applicable even
if no injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some overt
act on the part of the accused.
G
9. The evidence of PWs 2 and 3 did not attribute any overt
act to the appellant. The mere fact that he was in the company
of the accused who were armed would not be sufficient to
attract Section 34 IPC. It is undisputed that appellant was not
H armed and he had no animosity with the deceased. This
MUNNILAL S/O GOKUL TELi v. STATE OF M.P. 399
[DR. ARIJIT PASAYAT, J.]
position is also accepted by the prosecution. Additionally, the A
stand that he pulled the leg of the deceased has not been
established.
10. In the peculiar facts of the case therefore it would be
appropriate that the appellant cannot be held guilty by
8
application of Section 34 IPC. His conviction is accordingly set
aside. He be set at liberty forthwith unless required to be in
custody in connection with any case.
11. The appeal is allowed.
c
K.K.T. Appeal allowed.
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