NAND KISHOREversusSTATE OF MADHYA PRADESH

                      [2011] 7 S.C.R. 1152
                                                               •
A                        NANO KISHORE
                                v.
                 STATE OF MADHYA PRADESH
                (Criminal Appeal No. 437 of 2005)
                          JULY 07, 2011
B
     [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

       Penal Code, 1860 - s. 302134 - Conviction under -        I

  Quarrel between parties over recovery of dues by victim from I
c co-accused - Co-accused caught hold of victim and main
  accused stabbed him whereas appellant-accused pelted
  stones at victim resulting in the death of the victim -
  Conviction of three accused u/s. 302134 and sentenced to life
  imprisonment by courts below - Appeal before Supreme
0 Court dismissed as regards the main accused and co-
  accused :.... Conviction of appellant - Challenge to - Held: As
  regards the appellant, there is definite documentary, ocular
  and medical evidence, and statement of defence witness to
  repel the plea of the appellant that he had been falsely
E implicated - Knife was recovered in furtherance to the
  disclosure statement made by main accused and injuries on
  the body of the victim were inflicted by the knife -
  Discrepancies between the statements of the alleged eye
  witnesses as well as the medical evidence does not affect the
  prosecution case - All the three accused had a common
F intention in the commission of brutal crime - Thus,
  prosecution has been able to establish the charge beyond
  reasonable doubt - Conviction of appellant u/s. 302134
  upheld.
G      s. 34 - Common intention - Application of s. 34 -
    General principles - Explained.
        According to the prosecution, the victim had to
    recover some amountfrom 'M'. When the victim went to
    recover the said amount from 'M', a quarrel took place and .
H                              1152
--
      NANO KISHORE v. STATE OF MADHYA PRADESH 1153


     'M' along with 'D' and appellant-'N' killed the victim. PW-    A
     1, complainant witnessed that M had held the arms of the
     victim and 'D' was stabbing him with knife and 'N' was
     pelting stones at him: The victim later succumbed to his
     injuries. Investigation was carried out. A knife was
     recovered on the disclosure of 'D' and bricks and clothes      s
     of the deceased were also recovered. The Sessions
     Judge convicted 'D' for an offence under Section 302 IPC
     while 'M'and the appellant-'N' were convicted for an
     offence under Section 302/34 and each of them were
     awarded life sentence ·with fine. The High Court upheld        c
     the order. Therefore, the accused filed Special Leave
     Petition before the Supreme Court. This Court dismissed
     the SLP filed by 'M' and 'D'. Therefore, the appellant filed
     the instant appeal.
       · . Dismissing the appeal,. the Court                        D
         HELO: J. On facts,     all  the three accused had a
     common intention in commission of the said brutal crime.
     Each one of them participated though the vital blows
     were given by 'D'~ But for 'M' catching hold of arms of the
     deceased probably the death could have been avoided.           E
     The appellant showed no mercy and continued pelting
     stones on the deceased even when he collapsed to the
     ground. The prosecution has been able to establish the
     charge beyond reasonable doubt. [Para 16] [1168-E-G]
                                                               F
         2.1. PW1, complainant had clearly stated that 'D' had
   inflicted the injuries upon the body of the deceased with
   a knife. According to Investigating officer-PWB and PW2,
   the said knife was recovered by Panchnama of recovery.
   However, PW1 did not specifically state in the court that
   the knife was recovered by going to the house of the G
   accused. There is some element of difference between
  ·these statements but it in no way amounts to a material
   contradiction or discrepancy which has caused any
 · prejudice to the accused. PW1 in his examination stated
                                                                    H
                                                                --
   1154    SUPREME COURT REPORTS             [2011] 7 S.C.R.


A that after arrest of 'D', the police had questioned him and
  he had told them about the knife which was recovered.
  However, he stated that he does not remember the exact
  place from where the recovery was made due to lapse of
  time. However, with certainty he stated that a panchnama
B was prepared and it was signed. In his cross examination
  he categorically stated that the knife was recovered
  before him when he was called in Kotwali and he had
  seen that knife in kotwali and the knife had been
  recovered before the statement of 'D' was recorded'. This
c evidence of the witness has to be read in conjunction with
  the statement of PWB and PW 2. Upon such reading
  recovery of the knife from the house of the accused is
  established. The doctor referred to various injuries on the
  body of the deceased including abrasions and small cuts
  which could have been a result of pelting of stones by
0
  the appellant upon the deceased even after he had fallen
  on the ground. [Para 9) [1162-0-H; 1163-A-B]
      2.2. The evidentiary value of a statement should
  normally be appreciated in its correct perspective,
E attendant circumstances and the context in which the
  statement was made. As far as the alleged discrepancy
  with regard to recovery of knife is concerned, it is not
  possible for the court to attach undue importance to this
  aspect. The court has to form an opinion about the
F credibility of the witness and record a finding as to
  whether his deposition inspires confidence.
  Exaggerations per se do not render the evidence brittle.
  But it can be one of the factors to test credibility of the
  prosecution version, when the entire evidence is put in
  a crucible for being tested on the touchstone of
G credibility. Therefore, mere marginal variations in the
  statements of a witness cannot be dubbed as
  improvements, as the same may be elaborations of the
  statement made by the witness earlier. Irrelevant details
  which do not in any way corrode the credibility of a
H
--   . NANO KISHORE v. STATE OF MADHYA PRADESH 1155


     witness cannot be labelled as omissions or                        A
     contradictiQns. The omissions which amount to
     contradictions in material particulars, i.e., materially affect
     the trial or core of the prosecution's case, render the
     testimony of the witness liable to be discredited. The
     knife was recovered in furtherance to the disclosure              8
     statement made by 'D'. The recovery memo which was
     duly proved in accordance with law, according to the
     medical evidence given by PW5, and the statement of the
     investigating officer, PW8, clearly show that knife was
     recovered from the house of 'D' and the injuries on the           c
     body of the deceased were inflicted by the knife. Thus,
     these alleged discrepancies can hardly be of any
     advantage to the accused. [Para 9] [1163-C-H; 1164-A-B]
         State ·Represented by Inspector of Police v. Saravanan
     and Anr. (2008) 17 sec 587: 2008 (14) SCR 405;                    o
     Arumugam v. State (2008) 15 SCC 590: 2008 (14) SCR 309;
     Mahendra .Pratap Singh v. State of Uttar Pradesh (2009) 11
     sec 334: 2009 (2) SCR 1033 - relied on.
         2.3. Witness 'R' was given up as the prosecution felt
     that he would· be hostile to the case of the prosecution          E
     but 'S' himself was examined by the accused as its own
     witness. Once 'S' was examined as witness of the
     defence, the objection taken by the appellant that the
     court should draw adverse inference from non-
     examination of these witnesses loses its legal content.           F
     DW1, though appeared as witness for the defence,
     supported the case of the prosecution resulting in his
     being declared as a hostile witness by the counsel
     appearing for the accused. Therefore, the statement of
     DW1 could be and has rightly been relied upon by the              G
     Sessions Judge while convicting the accused of the
     offence. The statement of DW1 has fully corroborated the
     statement of PW1. He stated that there were nearly 20 to
     30 houses in that Mohalla and denied the suggestion
     made to him by the defence ~ounsel that he had not seen           H
    1156   SUPREME COURT REPORTS               [2011] 7 S.C.R.
                                                                   -
A anything on the fateful day and was not witness to the
  occurrence. He also, specifically, denied the suggestion
  that he was related to the family of the deceased. In his
  cross-examination, he clearly stated that 'M' had caught
  hold of both the hands of the deceased and 'D' had given
B blows on the chest of the deceased by a knife and 'N' had
  pelted stones on the deceased. He also stated that he had
  taken the deceased to the hospital along with PW1.
  Confronted with this evidence, the appellant can hardly
  even attempt to argue that there is no definite evidence
c on record to prove the commission of the offence by the
  appellant. There is definite documentary, ocular and
  medical evidence and more definitely statement of
  defence witness itself to repel the plea of the appellant
  that he has been falsely implicated in the case. [Para 10]
D [1164-C-H; 1165-A]
       3.1. The three ingredients of Section 34 IPC are that
  the criminal act is done by several persons; that such act
  is done in furtherance of the common intention of all; and
  that each of such persons is liable for that act in the same
E manner as if it were done by him alone would guide the
  court in determining whether an accused is liable to be
  convicted with the aid of Section 34. While first two are
  the acts which are attributable and have to be proved as
  actions of the accused, the third is the consequence.
F Once criminal act and common intentions are proved,
  then by fiction of law, criminal liability of having done that
  act by each person individually would arise. The criminal
  act, according to Section 34 IPC must be done by several
  persons. The emphasis in this part of the Section is on
  the word 'done'. It only flows from this that before a
G person can be convicted by following the provisions of
  Section 34, that person must have done something along
  with other persons. Some individual participation in the
  commission of the criminal act would be the requirement.
  Every individual member of the entire group charged with
H the aid of Section 34 must, therefore, be a participant in
--
      NANO KISHORE v. STATE OF MADHYA PRADESH 1157

          .                     .
     the joint act which is the result of their combined activity. A
     Under Section 34, every individual offender is associated
     with the criminal act which constitutes the offence both
     physically as well as mentally, i.e., he is a participant not
     only in what has been described as a common act but
     also what is termed as the common intention and, 8
     therefore, in both these respects his individual role is put
     into serious jeopardy although this individual role might
     be a part of a common scheme in which others have also
     joined him and played a role that is similar or different.
     But referring to the common intention, it needs to be c
     clarified that the courts must keep in mind the fine
     distinction between 'common intention' on the one hand
     and 'mens rea' as understood in criminal jurisprudence
     on the other. Common intention is not alike or identical
     to mens rea. The latter may be co-incidental with or .
                                                                    0
     collateral to the former but they are .distinct and different.
     [Para 11] [1165-B-H; 1166-A-E]
          3.2. Section 34 also deals with constructive criminal
     liability. It provides that where a criminal act is done by
     several persons in furtherance of the common intention        E
     of all, each of such persons is liable for that act in the
     same manner as if it was done by him alone. If the
     common intention leads to the commission of the
     criminal offence charged, each one of the persons
     sharing the common intention is constructively liable for     F
     the criminal act done by one of them. [Para 12) [1166-F-
     G]
        Brathi alias Sukhdev Singh v. State of Punjab (1991) 1
     SCC 519: 1990 (2) Suppl. SCR 503 - referred to.
          3.3. While dealing with such cases, the common           G
     intention or state of mind and the physical act, both may
     be arrived at the spot and essentially may not be the
     result of any pre-determined plan to commit such an
     offence. This will always depend on the facts and
     circumstances of the case, like in the instant ·Case the      H
                                                                   --
    1158   SUPREME COURT REPORTS                 (20111 7 s.c.R~


A deceased, all alone and unarmed went to demand money
  from 'M' but 'M', 'D' and the appellant got together outside
  their house and as is evident from the statement of the
  witnesses, they not only became aggressive but also
  committed a crime and went to the extent of stabbing him
B over and over again at most vital parts of the body
  puncturing both the heart and the lung as well as pelting
  stones at him even when he fell on the ground. But for
  their participation and a clear frame of mind to kill the
  deceased, 'D' probably would not have been able to kill
C the deceased. The role attributable to each one of them,
  thus, clearly demonstrates common intention and
  common participation to achieve the object of killing the
  deceased. In other words, the criminal act was done with
  the common intention to kill the deceased 'M'. The trial
  court rightly noticed that all the accused persons coming
D together in the night time and giving such serious blows
  and injuries with active participation shows a common
  intention to murder the deceased. Thus, the conclusions
  arrived at by the trial court and the High Court would not
  call for any interference. [Para 13] [1166-H; 1167-A-E]
E
         Shivalingappa Ka//ayanappa and Ors. v. State of
    Kamataka 1994Supp. (3) SCC 235; Jai Bhagwan and Ors.
    v. State of Haryana (1999) 3 SCC 102 - referred to.
                       Case Law Reference:
F
       2008 (14 ) SCR 405         Relied on.           Para 9
       2008 (14) SCR 309          Relied on.           Para 9
       2009 (2) SCR 1033          Relied on.            Para 9
       1990 (2) Suppl. SCR 503 Referred to.             Para 15
G
       1994 Supp. (3) SCC 235 Referred to.              Para 14
       (1999) 3 sec 102           Referred to.          Para 15
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal.
H No. 437 of 2005.
--
      NANO KISHORE v. STATE OF MADHYA PRADESH 1159


         From the Judgment & Order dated 26.8.2004 of the High         A
     Court of Judicature of Madhya Pradesh, Jabalpur, bench at
     Gwalior in Criminal Appeal No. 21 of 1999.
         T.N. Singh for the Appellant.
        Vikas Bansal (for Vibha Datta Makhija) for the                 8
     Respondent.
         The Judgment of the Court was delivered by
          SWATANTER KUMAR, J. 1. The present appeal is
     directed against the judgment of the High Court of Judicature C
     of Madhya Pradesh at Jabalpur dated 26th August, 2004
     affirming the judgment of the Sessions Judge, Datia, Madhya
     Pradesh dated 30th December, 1998 convicting all the three
     accused (appellants/petitioners herein) for an offence under
     Section 302 read with Section 34 of the Indian Penal Code
     (IPC) awarding life sentence to each one of them with a fine of D
     Rs.2,000/- each in default thereto to underge> rigorous
     imprisonment for three years.
          2. We must notice that vide order dated 28th May, 2005,
     the Special Leave Petition in respect of Petitioner Nos.2 and     E
     3, namely, Mahesh Dhimar and Dinesh Dhimar had already
     been dismissed. Thus, we have to consider the present appeal
     only in respect of Appellant No.1, namely, Nand Kishore.
          3. The learned counsel appearing on behalf of appellant
     No.1, while impugning the judgment under appeal contended         F
     that:
          A.    the prosecution has not been able to prove its case
                beyond reasonable doubt. In fact, there is no direct
                evidence to sustain the conviction of the accused.
                It is further argued that on the contrary, there are   G
                serious contradictions between the statements of
                the alleged eye-witnesses as well as the medical
                evidence. The accused, thus, was entitled to benefit
                of doubt and consequent acquittal.
                                                                       H
    1160        SUPREME COURT REPORTS                 (2011) 7 S.C.R.
                                                                        -
A          B.     In any case, the appellant could not have been
                  convicted at all for an offence under Section 302 ·
                  read with Section 34 IPC as he had no common
                  intention with other accused. It is further submitted
                  that he shared neither participated in the
B                 commission of the crime nor was he carrying any
                  weapon. On the cumulative reading of the evidence,
                  the ingredients of Section 34 IPC are not satisfied
                  and, therefore, conviction of the appellant is vitiated
                  in law.
C        4. In order to examine the merit or otherwise of these
    contentions, it would be useful for us to refer to the necessary
    facts giving rise to the present appeal.
        . The incident took place on 18th June, 1997 in the night at
    about 9-9.30 p.m. at Christian Ka Pura, Bangar Ki Haveli.
D   Some young boys of the vicinity informed the complainant, Brij
    Kishore Bidua, who was later examined as PW1 that a quarrel
    has taken place between Mahavir, the deceased, and Mahesh
    Dhimar near the house of Mahesh Dhimar. Upon receiving this
    information, Brij Kishore, along with Sunil Badhaulia, went
E   running to the Christian Ka Pura where they saw that Mahesh
    Dhimar was holding both the arms of Mahavir and Dinesh
    Dhimar was stabbing him with knife in the chest on the left side
    and Nand Kishore was also pelting stones at him. After receiving
    these injuries, Mahavir collapsed to the ground. As per the
F   witnesses even after Mahavir fe!I, Nand Kishore kept pelting
    stones on him and then they ran away from the site. Brij Kishore
    and Sunil carried Mahavir to the hospital on their scooter where
    the doctor examined him and declared him brought dead. It is
    the case of the prosecution that Mahavir had some dues to
G   recover from Mahesh Dhimar and to recover that money,
    Mahavir had gone to Mahesh Dhimar but the fight occurred and
    without any resistance from Mahavir, all the three accused killed
    him in the manner afore-referred.
       At about 10 p.m. the same day Brij Kishore, the brother
H of the deceased Mahavir, lodged a report in the Police Station
--
     NANO KISHORE v. STATE OF MADHYA PRADESH 1161
               [SWATANTER KUMAR, J.]

  at Kotwali Datia where a criminal case No.175/97 under              A
  Section 302 read with Section 34 IPC was registered. This
- was investigated by the Investigating Officer who, during
  investigation, prepared or caused to be prepared post mortem
  report, site plan, recovered a knife on the disclosure of Dinesh,
  recovered bricks, took sample of soil soaked in blood and           B
  clothes of the deceased. These things were sent to the forensic
  science laboratory for examination. After completing the
. investigation, challan was filed against all the accused persons.
  They were tried by the Court of competent jurisdiction. The
  Sessions Judge, Datia, by a detailed and well reasoned              c
  judgment dated 30th December, 1998, convicted accused
  Dinesh for an offence· under Section 302 IPC while the other
  two accused, namely, Nand Kishore and Mahesh Dhimar were
  convicted for an offence under Section 302 read with Section
  34 IPC and sentenced them as aforestated. This judgment was
                                                                      0
  unsuccessfully assailed by the accused before the High Court
  which dismissed the appeal declining to interfere either with the
  judgment of conviction or the order of sentence.
      5. Dissatisfied from the concurrent judgments of the courts,
 the accused has filed the present appeal.                            E
      6. The statements of PW1, Brij Kishore, Dr. P .K.
 Srivastava, PW5 and PW8, Narendra Singh, (Investigating
 Officer) have to be examined in some detail.
      7. PW1 is the eye-witness to the occurrence and while fully
                                                                      F
 supporting the case of the prosecution, he stated that Mahesh
 Dhimar's house was about 100. ft. away from the place of
 occurrence. He narrated the above facts and stated that
 Rajendra and Sunil had ;:ilso reached the spot following him and
 they had witnessed the occurrence. They took the deceased
 to the hospital where he was declared brought dead. This             G
 witness did not refer to any animosity between the deceased
 and the accused. PW8 has referred to the entire investigation,
 various recovery memos as well as registration of the FIR
 (Exhibit P1). Statement of PW1 is corroborated with the report
 of Exhibit P1.                                                       H
    1162     SUPREME COURT REPORTS                  (2011) 7 S.C.R.


A       8. Dr. P.K. Srivastava, PW5, stated that on 19th June, 1997
  at around 7.00 O'clock in the morning, he had examined the
  dead body of the deceased and there were incised wounds on
  his body on the left side of the chest, right thigh, in the heart in
  left lung and 11-12 other lacerated scratches and internal
B wounds etc. According to him, injury on the heart caused death
  and the deceased had died round about 10-14 hours before
  the post mortem examination.
           9. There are two main discrepancies which have been
    highlighted on behalf of the appellant to claim the benefit of
C   doubt. Firstly, that according to the doctor, there were nearly
    16 wounds on the body of the deceased, while the eye-
    witnesses have referred to just two blows by accused Dinesh
    Dhimar on the left side of the deceased; and secondly that the
    injuries were stated to have only been caused by a sharp
o   weapon. Brij Kishore (PW1) had clearly stated that Dinesh had
    inflicted the injuries upon the body of the deceased with a knife.
    According to Investigating officer (PW8) and Munna Lal (PW2),
    the said knife was recovered by Panchnama of recovery (Ex.
    P-6). However, PW1 did not specifically state in the Court that
E   the knife was recovered by going to the house of the accused.
    There is some element of difference between these statements
    but it in no way amounts to a material contradiction or
    discrepancy which has caused any prejudice to the accused.
    These so-called discrepancies can easily be explained and
F   have been dealt with in the judgment under appeal
    appropriately. In his examination in which PW1 has stated that
    after arrest of Dinesh, the police had questioned him and he
    had told them about the knife which was recovered. However,
    he stated that he does not remember the exact place from
    where the recovery was made due to lapse of time. He,
G   however, with certainty states that a panchnama was prepared
    and it was signed. In his cross examination he categorically
    stated "th~ knife was recovered before me when I was called
    in Kotwali by Vermaji and I had seen that knife in kotwali and
    the knife had been recovered before the statement of Dinesh
H   was recorded". This evidence of the witness has to be read in
   NANO KISHORE v. STATE OF MADHYA PRADESH 1163
             [SWATANTER KUMAR, J.]

  conjunction with the statement of PW8 and PW 2. Upon such A
  reading recovery of the knife from the house of the accused is
  established. Further, the doctor has referred to various injuries
  on the body of the deceased including abrasions and small
  cuts which could have been a result of pelting of stones by Nanq
  Kishore upon the deceased even after he had fallen on the B
  ground. While rejecting the cont~ntion with respect to the second
   alleged discrepancy, it must be borne in mind that the Court
  has to examine the statement of a witness as a whole. The Court
   may not be in a correct position to arrive at any finarconclusion
  while only reading or relying upon a sentence in the statement          c
   ofa witness that too by reading it out of context. The evidentiary
   v.alue of a statement should normally be appreciated in its
, rcorrect perspective, attendant circumstances and the context
   in which the statement was made. As far as the alleged
   discrepancy with regard to recovery of knife is concerned, it is ·
                                                                          0
   not possible.for the Court to attach undue importance to this
   aspect. The court has to form an opinion about the credibility
   of the witness and record a finding as to whether his deposition
   inspires confidence. "Exaggerations per se do not render the
   evidence brittle. But it can be one of the factors to test credibility
   of the prosecution version, when the entire evidence is put in a E
   crucible for being tested on the touchstone of credibility."
    Therefore, mere marginal variations in the statements of a
    witness cannot be dubbed as improvements, as the same may
    be elaborations of the statement made by the witness earlier.
  "Irrelevant details which do not in any way corrode the                 F
  credibility of a witness cannot be labelled as omissions or
  contradictions." The omissions which amount to contradictions
  in material particulars, i.e~. materially affect the trial or core of
  the prosecution's case, render the testimony of the witness
  liable to be discredited. [Vide: State Represented by Inspector         G
  of Police v. Saravanan & Anr. [(2008) 17 SCC 587],
  Arumugam v. State [(2008) 15 SCC 590] and Mahendra
  Pratap Singh v. State of Uttar Pradesh [(2009) 11 SCC 334].
  The knife was recovered in furtherance to the disclosure
  statement made by Dinesh Dhimar. The recovery memo which                H
    1164     SUPREME COURT REPORTS                 [2011] 7 S.C.R.
                                                                         -
A was duly proved in accordance with law, according to the
  medical evidence given by PW5, and the statement of the
  investigating officer, PW8, clearly show that knife was
  recovered from the house of Dinesh Dhimar and the injuries
  on the body of the deceased were inflicted by the knife. Thus,
B these alleged discrepancies can hardly be of any advantage
  to the accused.
          10. Another very significant aspect of this case is that the
    prosecution had not examined Rajendra and Sunil as
     prosecution witnesses and this issue was raised on behalf of
C   the defence that the Court should draw adverse inference from
     non-examination of these witnesses. Witness Rajendra was
    given up as the prosecution felt that he would be hostile to the .
    case of the prosecution but Sunil himself was examined by the
    accused as its own witness. Once Sunil was examined as
D   witness of the defence, the objection taken by the appellant
    loses its legal content. DW1, though appeared as witness for
    the defence, supported the case of the prosecution resulting
    in his being declared as a hostile witness by the counsel
    appearing for the accused. Therefore, the statement of DW1
E   could be and has rightly been relied upon by the learned
    Sessions Judge while convicting the accused of the offence.
    The statement of DW1 has fully corroborated the statement of
    PW1. He stated that there were nearly 20 to 30 houses in that
    Mohalla and denied the suggestion made to him by the
F   defence counsel that he had not seen anything on the fateful
    day and was not witness to the occurrence. He also,
    specifically, denied the suggestion that he was related to the
    family of the deceased. In his cross-examination, he has clearly
    stated that Mahesh Dhimar had caught hold of both the hands
    of the deceased and Dinesh Dhimar had given blows on the
G   chest of the deceased by a knife and Nand Kishore had pelted
    stones on the deceased. Lastly, he also stated that he had taken
    the deceased to the hospital along with PW1. Confronted with
    this evidence, the appellant can hardly even attempt to argue
    that there is no definite evidence on record to prove the
H
-
      NANO KISHORE v. STATE OF MADHYA PRADESH 1165
                    [SWATANTER KUMAR, J.]
                         .
                        ' .
    commission of the dffence by the appellant. There is definite        A
    documentary, ocular and medical evidence and more definitely
    statement of defence witness itself to repel the plea of the
    appellant that he has been falsely implicated in the case.
         11. Now, we would examine whether the conviction of the
    appellant under Section 302 with the aid of Section 34 by the B
    courts is sustainable in law or not. For the application of Section
    34 IPC, it is difficult to state any hard and fast rule which can
    be applied universally to all cases. It will always depend upon
    the facts and circumstances of the given case whether the
    persons involved in the commission of the crime with a C
    common intention can be held guilty of the main offence
    committed by them together. Provisions of Section 34 IPC
    come to the aid of law while dealing with cases of criminal
    offence committed by a group of persons with common
    intention. Section 34 reads as under :                              ·D
         "34. Acts done by several persons in furtherance of
        ·common int~ntion.-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."                        E
        A bare reading of this section shows that the section could
    be dissected as follows :
          (a)   Criminal act is done by several persons;
          (b)   Such act is done in furtherance of the common            F
                intention of all; and
          (c) . Each of such persons is liable for that Act in the
                same manner as if it were done by him alone.
        In other words, these three ingredients would guide the          G
    court is determining whether an accused is liable to be
    convicted with the aid of Section 34. While first two are the acts
    which are attributable and have to be p~oved as actions of the
    accused, the third is the consequence. Once criminal act and
    common intentions are proved, then by fiction of law, criminal       H
    1166     SUPREME COURT REPORTS                    [2011] 7 S.C.R.


A    liability of having done that act by each person individually would
     arise. The criminal act, according to Section 34 IPC must be
    done by several persons. The emphasis in this part of the
     section is on the word 'done'. It only flows from this that before
    a person can be convicted by following the provisions of Section
B 34, that person must have done something along with other
     persons. Some individual participation in the commission of the
     criminal act would be the requirement. Every individual member
    of the entire group charged with the aid of Section 34 must,
    therefore, be a participant in the joint act which is the result of
c   their combined activity. Under Section 34, every individual
    offender is associated with the criminal act which constitutes
    the offence both physically as well as mentally, i.e., he is a
    participant not only in what has been described as a common
    act but also what is termed as the comrhon intention and,
    therefore, in both .these respects his individual role is put into
0
  . serious jeopardy although this individual role might be a part
    of a common scheme in which others have also joined him and
    played a role that is similar or different. But referring to the
    common intention, it needs to.be clarified that the courts must
    keep in mind the fine distinction between 'common intention'
E on the one hand and 'mens rea' as understood in criminal
    jurisprudence on the other. Common intention is not alike or
    identical to mens rea. The latter may be co-incidental with or
    collateral to the former but they are distinct and different.
F       12. Section 34 also deals with constructive criminal liability.
  It provides that where a criminal act is done by several persons
  in furtherance of the common intention of all, each of such
  persons is liable for that act in the same manner as if it was
  done by him alone. If the common intention leads to the
  commission of the criminal offence charged, each one of the
G persons sharing the common intention is constructively liable
  for the criminal act done by one of them. {Refer to Brathi alias
  Sukhdev Singh v. State of Punjab.((1991) 1 SCC 519)}.
       13. Another aspect which the Court has to keep in mind
H while dealing with such cases is that the common intention or
 NAND KISHORE v. STATE OF MADHYA PRADESH 1167
           [SWATANTER KUMAR, J.]

state of mind and the physical act. both may be arrived at the        A
spot and essentially may not be the result of any pre-determined
plan to commit such an offence. This will always depend on the
facts and circumstances of the case, like in the present case
Mahavir, all alone and unarmed went to demand money from
Mahesh but Mahesh, Dinesh and Nand Kishore got together               B
outside their house and as is evident from the statement of the
witnesses, they not only became aggressive but also
committed a crime and went to the extent of stabbing him over
and over again at most vital parts of the body puncturing both
the heart and the lung as well as pelting stones at him even          c
when he fell on the ground. But for their participation and a clear
frame of mind to kill the deceased, Dinesh probably would no~
have been able to kill Mahavir. The role attributable to each one
of them, thus, clearly demonstrates common intention and
common participation to achieve the object of killing the             D
deceased. In other words, the criminal act was done with the
common intention to kill the deceased Mahavir. The trial court
has rightly noticed in its judgment that all the accused persons
coming together in the night time and giving such serious blows
and injuries with active participation shows a common intention
to murder the deceased. In these circumstances, the                   E
conclusions arrived at by the trial Court and the High Court
would not call for any interference.
      14. The learned counsel appearing for the appellant had
relied upon the judgment of this Court in the case of                 F
Shivalingappa Kallayanappa & Ors. v. State of Karnataka
[1994 Supp. (3) sec 235] to contend that they could not be
charged or convicted for an offence under Section 302 with the
aid of Section 34 IPC. The said judgment has rightly been
distinguished by the High Co~rt in the judgm_ent under appeal.        G
In that case, the Supreme Court had considered the role of
each individual and recorded a finding that there was no
common _gbject' on the part of the accused to commit murder.
In thafease, the court was primarily concerned with the
common object falling within the ambit of Section 149, IPC. In
                                                                      H
     1168       SUPREME COURT REPORTS                    [2011] 7 S.C.R.

A    fact, Section 34 IPC has not even been referred to in the afore-
     referred judgment of this Court.
          15. Another case to which attention of this Court was invited
     is Jai Bhagwan & Ors. v. State of Haryana [(1999) 3 SCC 102].
8    In that case also, the Court had discussed the scope of Section
     34 IPC and held that common intention and participation of the
     accused in commission of the offence are the ingredients which
     should be satisfied before a person could be convicted with the
     aid of Section 34 IPC. The Court held as under:
C           "10. To apply Section 34 IPC apart from the fact that there
            should be two or more accused, two factors must be
            established: (1) common intention and (it) participation of
            the accused in the commission of an offence. If a common
            intention is proved but no overt act is attributed to the
D           individual accused, Section 34 will be attracted as
            essentially it involves vicarious liability but if participation
            of the accused in the crime is proved and a common
            intention is absent, Section 34 cannot be invoked. In every
            case, it is not possible to have direct evidence of a
E           common intention. It has to be inferred from the facts and
            circumstances of each case."
            16. The facts of the present case examined in light of the
     above principles do not leave any doubt in our minds that all
     the three accused had a common intention in commission of
C"   this brutal crime. Each one of them participated though the vital
     blows were given by Dinesh Dhimar. But for Mahesh catching
     hold of arms of the deceased probably the death could have
     been avoided. Nand Kishore showed no mercy and continued
     pelting stones on the deceased even when he collapsed to the
G    ground. The prosecution has been able to establish the charge
     beyond reasonable doubt.
          17. The judgments of the courts below do not suffer from
     any legal infirmity or appreciation of evidence. While finding no
     merit in the appeal, we dismiss the same.
H    D.G.                                             Appeal dismissed.