STATE OF RAJASTHANversusSHOBHA RAM

                    [2013) 1 S.C.R. 327


                 STATE OF RAJASTHAN                            A
                             v.
                      SHOBHA RAM
          (Criminal Appeal No. 592 of 2008 etc.)
                   JANUARY 16, 2013.
                                                               B
        [H.L. DATIU AND RANJAN GOGOi, JJ.]

    PENAL CODE, 1860:

    s. 302 read with s. 34 - Murder caused by two brothers -   c
Conviction by trial court of both the accused - High Court
affirming conviction of appellant and acquitting his brother -
Held: Evidence discloses that both accused brothers had an
old enmity with deceased over a well - On date of incident
deceased was attacked by both accused inasmuch as
                                                               0
appellant assaulted the deceased by stones while h~ brother
facilitated execution of common design by sitting on his chest
- Judgment of High Court acquitting one of the accused set
aside and that of trial court convicting both restored.

    s. 34 - Common intention - Explained.                      E

     The appellant (A-1) in Crl. A. No. 593 of 2008, along
with his brother (A-2) faced trial for an offence punishable
uls 302134 IPC on the allegation that because of enmity
pursuant to a dispute over a well, the accused caused F
injuries to the brother of PW 1 with stones resulting in his
death. The trial court convicted both the accused of the
offence charged and sentenced each of them to
imprisonment for life. The High Court affirmed the
conviction of A-1, but acquitted A-2.                        G

    In the instant appeals, State challenged the acquittal
of A-2, whereas A-1 challenged his conviction.

    Disposing of the appeals, the Court
                         327                                   H
    328      SUPREME COURT REPORTS             [2013] 1 S.C.R.


A       HELD: 1.1. PW-6, in his evidence has stated that A-1
  was assaulting the deceased with stones and A-2
  facilitated execution of the common design by sitting on
  the chest of the deceased. Despite cross-examination at
  length, PW-6, has maintained his version, thereby, not
B leaving any scope for the defense to elicit anything
  against the prosecution witness. Therefore, the evidence
  of the said witness is of sterling quality and is reliable
  and trustworthy, leaving this Court with no other
  alternative but to accept his evidence. Therefore, this
c Court declines to interfere with the finding and
  conclusion reached by the trial court and affirmed by the
  High Court insofar as conviction of A-1 is concerned.
  [para 8) [331-G-H; 332-A-C]

       1.2. A perusal of s.34; IPC would clearly indicate that
D there must be two ingredients for convicting a person
  with the aid of s. 34 IPC. Firstly, there must be a common
  intention; and secondly, there must be participation by
  the accused persons in furtherance of the common
  intention. The facts in the instant case in the light of the
E evidences on record are that A-1 and A-2 are brothers
  having an old enmity with the deceased resulting in a
  constant skirmish over the well located in their lands. On
  the date of incident, the animosity culminated to an
  assault on the deceased by the accused persons when
F A-1 was assaulting the deceased with stones and A-2
  remained sitting on his chest. The chain of events gives
  a clear picture of the whole incident that had taken place
  on that fateful day. Thus, it can be concluded that both
  the accused persons had a common intention to assault
G and kill the deceased pursuant to a pre-concerted plan.
  [para 11 and 13) [334-F-H; 335-A-B]

          Nadodi Jayaraman and Others vs. State of Tamil Nadu
  (1992) 3 SCC 161; Saravanan and Another vs. State of
                                        =
H Pondicherry 2004 (5) Suppl. SCR 890 (2004) 13 SCC 238;
     STATE OF RAJASTHAN v. SHOBHA RAM                    329


Suresh & Anr. vs. State of UP. 2001(2) SCR 263 = (2001) 3 A
SCC 673; Ramaswami Ayyangar and Others vs. State of
                                    =
Tamil Nadu 1976 Suppl. SCR 580 (1976) 3 SCC 779; and
Hari Ram vs. State of U.P. (2004) 8 sec 146 - relied on

    1.4. The judgment and order of conviction and                B
sentence against the accused persons passed by the trial
court u/s 302 read with s.34, IPC is confirmed and the
judgment and order passed by the High Court in
acquitting accused A-2 is set aside. [para 14) [335-0-E]

                     Case Law Reference:                         c
  (1992) 3 sec 161                 relied on       para 10
  2004(5) Suppl. SCR 890         relied on         para 10
  2001 (2) SCR 263                 relied on       para 11       D
  1976 (0) Suppl. SCR 580          relied on       para 11
  (2004) a sec 146                 relied on       para 12
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal            E
No. 592 of 2008.

     From the Judgment and Order dated 03.06.2005 of the
High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur
in D.B. Criminal Appeal No. 130 of 2000.
                                                                 F
                            WITH
Criminal Appeal No. 593 of 2008.

   Sushi! Kr. Dubey, Milind Kumar, Subhash Sharma and
Mahabir Singh for the appearing parties.                         G

    The following Judgment of the Court was delivered by

     1. These appeals are directed against the judgment and
order passed by the High Court of Judicature for Rajasthan,
Jaipur Bench, Jaipur in Criminal Appeal No. 130 of 2000, dated   H
    330      SUPREME COURT REPORTS                   [2013] 1 S.C.R


A   03.06.2005. The High Court, while affirming the judgment of the
    Trial Court in Sessions Case No. 49/99, dated 15.03.2000, has
    convicted Shri Ram - A-1, under Section 302 read with Section
    34 of the Indian Penal Code ("the IPC" for short) and reversed
    the judgment of the Trial Court and acquitted Shobha Ram -
B   A-2. It is the acquittal of A-2, which is called in question by the
    appellant - State of Rajasthan in Criminal Appeal No. 592 of
    2008.

        2. Criminal Appeal No. 593 of 2008 is preferred by Shri
C   Ram - A-1, being aggrieved by the order of conviction and
    sentence passed by the Trial Court and confirmed by the High
    Court.

          3. The facts in brief are: The incident occurred on
    16.02.1999 at about 5.30 p.m. PW-1 - Mohanlal, who is the
D   brother of the deceased-Trilokchand had lodged the FIR before
    S.H.O., Police Station Chechat, regarding the alleged assault
    on the deceased by the accused persons. On the fateful day,
    the appellants on account of their past enmity over the well
    located in their lands, formed common intention to cause death
E   of Trilokchand (since deceased) and in furtherance of their
    common intention, they caused injuries to the deceased with
    stones resulting in his death. The FIR was registered and after
    the completion of the investigation, the investigating agency had
    filed a charge-sheet against A-1 and A-2 under Section 302
F   read with Section 34 of the IPC. The accused persons denied
    the charge and pleaded false implication and, therefore, the
    Trial had commenced against both the accused A-1 and A-2.


G         4. During the Trial, the prosecution, in order to prove the
    guilt of the accused persons had examined several witnesses
    including PW-1 and PW-2 Smt. Manoharbai wife of the
    deceased, PW-3 Bhawanishankar, PW-4 Kalulal, PW-6
    Basantilal and other witnesses. Prosecution had projected PW-
H   2 and PW-6 as eye witnesses to the incident.
       STATE OF RAJASTHAN v. SHOBHA RAM                      331


       5. The Trial Court after appreciating the evidence of the    A
  eye witnesses and others, has come to the conclusion that the
  testimony of PW-2 does not corroborate with the FIR and other
  material available on record and, therefore, it co~ld be safely
  concluded that PW-2 had not seen the occurrence of actual
  incident and therefore, the evidence at the most can only be      B
  an hearsay evidence. However, the Trial Cour:t has believed the
  evidence of PW-6, who, in his evidence, has categorically
  stated that A-1 was assaulting the deceased with the stones
  and A-2 was sitting on the chest of the deceased. The Trial
  Court placing reliance on the evidence of PW-6 has convicted      c
  and sentenced the accused persons under Section 302 read
  with Section 34 of the IPC to suffer imprisonment for life and
  to pay a fine of Rs.1000/- each, and in default, to undergo
. simple imprisonment for a further period of six months.
                                                                    D
     6. Aggrieved by the order of conviction and ~entence
passed by the Trial Court, the accused persons had filed
appeals before the High Court. The High Court has confirmed
the conviction and sentence of A-1 passed by the Trial Court.
However, the High Court has acquitted A-2, only on the ground
that A-2 had not actively participated in the commission of the     E
offence and, therefore, the Trial Court w&s not justified in
convicting A-2 for an offence punishable under Section 302
read with Section 34 of the IPC. .

     7. It is the correctnes~ or otherwise of the judgment and      F
order passed by the High Court which is called in question by
the appellants in this appeal.

     8. We will first take up the appeal of A-1. The Trial Court
and the High Court has convicted A-1 based on the evidence          G
of the sole eye-witness, namely, PW-6. In order to satisfy
ourselves, we have once again carefully analyzed the evidence
on record and the conviction of A-1 by the Trial Court with the
aid of the sole eye-witness of PW-6. In his evidence PW-6 has
stated, A-2 was acting in concert with A-1 in causing the murder
                                                                    H
    332       SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A of the deceased, wherein A-1 was assaulting the deceased
  with stones and A-2 had facilitated the execution of the common
  design by sitting on the chest of the deceased. Despite cross-
  examination at length, PW-6, has maintained his version,
  thereby, not leaving any scope for the defense to elicit anything
B against the prosecution witness. Therefore, in our opinion, the
  evidence of the said witness is of sterling quality and therefore
  reliable and trustworthy, leaving us with no other alternative but
  to accept his evidence. Therefore, we decline to interfere with
  the finding and conclusion reached by the Trial Court insofar
c as convicting A-1 is concerned. Therefore, we reject the appeal
  filed by A-1 and confirm the orders passed by the Trial Court
  and the High Court.

        9. While considering the appeal filed by the State of
  Rajasthan, we have carefully perused the judgment and order
0
  passed by the High Court. The High Court has acquitted, A-2,
  only on the ground that merely sitting on the chest of the
  deceased rules out the possibility of active participation by A-
  2 in the commission of offence and therefore has acquitted him
  from the charges under Section 302 read with Section 34 of
E the IPC.

       10. The nuances of Section 34 of the IPC has been
  explained by this Court in several decisions, but we will only
  refer to the decision in the case of Nadodi Jayaraman and
F Others vs. State of Tamil Nadu [(1992) 3 SCC 161] and
  Saravanan and Another vs. State of Pondicherry [(2004) 13
  SCC 238]. In the case of Nadodi Jayaraman and others
  (Supra), the Court has observed:-

G               " 9. Section 34 of IPC enacts that 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.
          The section thus lays down a principle of joint liability in
          the doing of a criminal act. The essence of that liability is
H
      STATE OF RAJASTHAN v. SHOBHA RAM                         333


     found in the existence of "common intention" animating the A
     accused leading to the doing of a criminal act in
     furtherance of such intention. The section is intended to
     meet a case in which it is difficult to distinguish between
     the act of individual members of a party and to prove
     exactly vyhat part was played by each of them. It, therefore, B
     enacts that once it is found that a criminal act has been
     committed by several persons in furtherance of the
     common intention of all, each of such persons is liable for
     the criminal act as if it were done by him alone. It is thus
     an exception to the general rule of criminal jurisprudence c
     that it is the primary responsibility of the person who
     actually commits a crime and only that person can be held
     guilty and punished in accordance with law for his
     individual act.

      15. It is thus clear that the criminal act referred to in Section D
      34 IPC is the result of the concerted action of more than
      one person if the said result was reached in furtherance
      of the common intention and each person must be held
      liable for the ultimate result as if he had done it himself. "
                                                                        E
      11. A perusal of Section 34 of the IPC would clearly
indicate that there must be two ingredients for convicting a
person with the aid of Section 34 of the IPC. Firstly, there must
be a common intention and secondly, there must be
participation by the accused persons in furtherance of the F
common intention. If the common intention is proved, it may not
be 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 be
arising out of the same common intention in order to attract the G
provision. The said principle is reiterated in a three-judge bench
decision in Suresh & Anr. vs. State of U.P. [(2001) 3 SCC 673)
and Ramaswami Ayyangar and Others vs. State of Tamil
Nadu [(1976) 3 SCC 779), wherein the court has stated that
the acts committed by different confederates in the criminal H
    334      SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A   action may be different, but all must in one way or the other
    participate and engage in the criminal enterprise, for instance,
    one may only stand guard to prevent any person coming to the
    relief of the victim or to otherwise facilitate the commission of
    crime. Such a person also commits an "act" as much as his co-
s   participants actually committing the planned crime. In the case
    of an offence involving physical violence, the person who
    instigates or aids the commission of the crime must be
    physically present and such presence of those who in one way
    or the other facilitate the execution of the common design, is
c   itself tantamount to actual participation in the 'criminal act.'

       12. Insofar as common intention is concerned, it is a state
  of mind of an accused which can be inferred objectively from
  his conduct displayed in the course of commission of crime and
  also from prior and subsequent attendant circumstances. As
0
  observed in Hari Ram vs. State of UP. [(2004) 8 SCC 146],
  the existence of 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. Therefore, in order to bring home
E 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 before a person can be vicariously convicted for the
  act of the other.
F
       13. The facts in the present case in the light of the
  evidences on record are that, A-1 and A-2 are brothers having
  an old enmity with the deceased resulting in a constant skirmish
  over the well located in their lands. On the said date of incident,
G the animosity culminated to an assault on the deceased by the
  accused persons when the deceased was nearing his land. It
  has come in the evidence of PW-6, that A-1 was assaulting the
  deceased with stones and A-2 was sitting on the chest of the
  deceased. The aforesaid chain of events gives a clear picture
H
        STATE OF RAJASTHAN v. SHOBHA RAM                   335


of the whole incident that had taken place on that fateful day. A
The evidence of, PW-6, when seen in entirety and in its proper
perspective, we can conclude that both the accused persons
i.e. A-1 and A-2 had a common intention to assault and kill the
deceased person with A-2 as a participant in the crime with
the intention of lending weight to the commission of an offence 8
pursuant to a pre-concerted plan. In our opinion, the High Court
was not justified in coming to the conclusion that merely
because A-2 was sitting on the chest of the deceased person,
the said accused person is entitled for the benefit of doubt and
thereby an acquittal. In our opinion, the reasoning and           c
conclusion reached by the High Court is against the well settled
legal principles.

      14. In the result, while allowing the appeal of the appellant-
State of Rajasthan (Criminal Appeal No.592 of 2008), we
dismiss the appeal filed by Shri Ram - A-1 (Criminal Appeal D
 No.593 of 2008) and confirm the judgment and order of
conviction and sentence against the accused persons so
 passed by the Trial Court under Section 302 read with Section
34 of the IPC and set aside the judgment and order passed
by the High Court in acquitting accused A-2. We further direct E
that the Accused A-2 Shobha Ram shall surrender forthwith to
serve out the remaining period of sentence. The Trial Court is
directed to send the compliance report to this Court within one
month's time from the date of receipt of a copy of this
judgment. Registry shall send back the lower court records with F
a copy of this judgment to the Trial Court forthwith for
information and necessary action.

       Ordered accordingly.
                                                                  G
R.P.                                     Appeals dispose~ of.