Supreme Court of India
VASANT @ GIRISH AKBARASAB SANAVALE & ANR.versusTHE STATE OF KARNATAKA
- Citation
- 2025 INSC 221
- Decided
- 10 February 2025
- Disposal
- Case Partly allowed
Holding
The Supreme Court affirmed the conviction of the mother‑in‑law but acquitted the husband, finding insufficient evidence of his participation or common intention under Section 34 IPC.
Summary
The deceased Geetha was allegedly set on fire by her mother‑in‑law, leading to her death. The trial court acquitted both the husband (appellant No.1) and the mother‑in‑law (appellant No.2) for offences under Sections 498A, 302, 504 r/w 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act. The High Court reversed the acquittal, convicting both appellants on the basis of a dying declaration and the theory of common intention under Section 34 IPC. The Supreme Court examined the admissibility of the dying declaration, the applicability of Section 106 Evidence Act, and the requirement of personal participation for liability under Section 34. It held that while the mother‑in‑law’s participation was clearly established, there was no cogent evidence that the husband shared the common intention or participated in the criminal act. Consequently, the mother‑in‑law’s conviction was affirmed and the husband was acquitted.
Issues considered
- Whether the husband can be held liable for murder under Section 34 IPC based on alleged common intention with his mother‑in‑law.
- Whether the dying declaration recorded by the Tehsildar is reliable and admissible.
- Whether Section 106 of the Evidence Act can be invoked to implicate the husband.
- Interpretation of the distinction between Sections 34 and 149 IPC concerning common intention and common object.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 209, s. 313
- Dowry Prohibition Act, 1961s. 3, s. 4
- Evidence Act, 1872s. 106
- Indian Penal Code, 1860s. 149, s. 302, s. 34, s. 498A, s. 504
Subjects
DowrySetting wife on fireAcquittalDying declarationCommon intentionPrincipal in the first degreePrincipal in the second degreeAccessories at the factAccessories after the factAccessories before the factPresence on the sceneCommon designPre‑concerted endSuccessive actsSimultaneous actsSpecial knowledgeIntention of the individual offenderMens reaCommon object of assembly as a wholeAbetmentPresence on the spot as spectatorCriminal ActFit state of mind to give dying declarationOral dying declarationOral evidenceCommon intention of allIndividual offenderUnlawful assembly
Judgment
[2025] 3 S.C.R. 158 : 2025 INSC 221
Vasant @ Girish Akbarasab Sanavale & Anr.
v.
The State of Karnataka
(Criminal Appeal No. 593 of 2022)
11 February 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
Issue arose as regards the correctness of the order passed by
the High Court reversing the acquittal of the appellants-husband
and mother-in-law of the deceased-wife and held them both guilty
of offences under the Penal Code, 1860 and Dowry Prohibition
Act, 1961 for causing the death of the deceased by setting her
on fire.
Headnotes†
Penal Code, 1860 – ss.498A, 302 and 504 rw s.34 – Common
intention – Individual liability – Appellants-husband and
mother-in-law of the deceased-wife charged for causing
her death by setting her on fire – Dying declaration made –
Acquittal by the trial court of the offence punishable u/ss.
498A, 302 and 504 rw s.34 and ss.3 and 4 of the 1961 Act –
However, the High Court reversed the acquittal and held both
of them guilty of the offences – Correctness:
Held: Although s.34 deals with a criminal act which is joint and
an intention which is common, it cannot be said that it completely
ignores or eliminates the element of personal contribution of the
individual offender in both these respects – Condition precedent
of s.34 that the individual offender must have participated in the
offence in both these respects – He must have done something,
however slight, or conduct himself in some manner, however
nebulous whether by doing an act or by omitting to do an act so
as to indicate that he was a participant in the offence and a guilty
associate in it – He must also be individually a party to an intention
which he must share in common with others – He must be a sharer
both in the ‘criminal act’ as well as in the ‘common intention’ which
are the twin aspects of s.34 – No cogent and reliable evidence
to hold the husband-appellant guilty of the alleged offence even
[2025] 3 S.C.R. 159
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The State of Karnataka
with the aid of s.34 – It is difficult for the accused to urge that
owing to the mention of s.34, in the charge, he was misled or
prejudiced in his defence by being persuaded to presume that
all consideration of his individual liability was completely shut out
as a result thereof – To implicate the husband also in the alleged
crime, u/s.106 Evidence Act, the prosecution has to as a condition
precedent lay the foundational facts prima facie indicating his
involvement or participation in the alleged crime – His sudden
disappearance after the incident not sufficient to infer common
intention – Furthermore, it cannot be said that the deceased was
not in a fit state of mind to give a dying declaration – Nothing
to disbelieve the oral dying declaration made by the deceased
before the doctor – Also pertinent to note that only the mother-
in-law, figures in the dying declaration as well as oral evidence
of the doctor and the tehsildar – Thus, the High Court rightly held
the mother-in-law-appellant no.2 guilty of the alleged crime but
erred in holding the husband-appellant no.1 guilty of the offence
of murder with the aid of s.34 – Conviction of appellant no.2
affirmed – Appellant no.1 acquitted of all charges – Evidence Act,
1872 – s.106 – Dowry Prohibition Act, 1961 – ss.3, 4. [Paras 37,
39, 41, 58, 63, 87-89, 91-93 ]
Penal Code, 1860 – ss.34 and 149 – Common intention
vis-a-vis Common object – Difference between ss.34 and
149 – Explained. [Paras 41-50 ]
Penal Code, 1860 – s.34 – Common intention – Criminal act –
Meaning – Explained. [52-76]
Case Law Cited
Om Prakash v. State, 1956 CrLJ 452; Barendra Kumar Ghosh v.
Emperor, AIR 1925 PC 1; Emperor v. Barendra Kumar Ghosh,
AIR 1924 Cal 257 (FB); Shreekantiah Ramayya Munipalli v. State
of Bombay (S) [1955] 1 SCR : 1177 AIR 1955 SC 287; Bashir v.
State, AIR 1953 All 668; Faiyaz Khan v. Rex, AIR 1949 All 180;
Aydrooss v. Emperor, AIR 1923 Mad 187; Abdul Kader v. Emperor,
AIR 1946 Cal 452; Suresh Sakharam Nangare v. The State of
Maharashtra [2012] 7 SCR 1186 : 2012 (9) Judgements Today
116 – referred to.
160 [2025] 3 S.C.R.
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List of Acts
Penal Code, 1860; Dowry Prohibition Act, 1961; Code of Criminal
Procedure, 1973; Evidence Act 1872.
List of Keywords
Dowry; Setting wife on fire; Acquittal; Dying declaration; Common
intention; Principal in the first degree; Principal in the second degree;
Accessories at the fact; Accessories after the fact; Accessories
before the fact; Presence on the scene; Common design; Pre-
concerted end; Successive acts; Simultaneous acts; Special
knowledge; Intention of the individual offender; Mens rea; Common
object of assembly as a whole; Abetment; Presence on the spot as
spectator; Criminal Act; Fit state of mind to give dying declaration;
Oral dying declaration; Oral evidence; Common intention of all;
Individual offender; Unlawful assembly.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
593 of 2022
From the Judgment and Order dated 06.10.2020 of the High Court
of Karnataka Circuit Bench at Dharwad in CRLA No. 100168 of 2016
Appearances for Parties
H. Chandra Sekhar, Adv. for the Appellants.
Avishkar Singhvi, A.A.G., V. N. Raghupathy, Vivek Kumar Singh,
Naved Ahmed, Ms. Sakshi Raman, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Order
1. This appeal arises from the judgment and order passed by the High
Court of Karnataka, Dharwad Bench in Criminal Appeal No. 100168
of 2016 dated 6th October 2020 by which the High Court allowed the
appeal filed by the State of Karnataka and thereby quashed and set
aside the judgment and order passed by the VIth Additional District
& Sessions Judge, Belagavi in S.C. No. 151 of 2013 acquitting the
appellants herein of the offence punishable under Sections 498A,
302 and 504 read with Section 34 respectively of the Indian Penal
[2025] 3 S.C.R. 161
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Code, 1860 (for short “the IPC”) and Sections 3 and 4 respectively
of the Dowry Prohibition Act, 1961.
2. It is the case of the prosecution that the deceased named Geetha was
married to the appellant no.1 herein viz. Vasant @ Girish Akbarasab
Sanavale past 8 years from the date of the incident. In the wedlock
three children were born. It is alleged that after a period of one year
from the date of marriage the husband and his family members
started harassing the deceased. The deceased was being harassed
for dowry and in connection with the domestic house hold work.
3. On the date of the incident at around 8.00 p.m. while the deceased
was at her matrimonial home, her mother-in-law i.e. the appellant
no.2 herein is alleged to have poured kerosene on her body and set
her on fire. The deceased suffered extensive burn injuries.
4. The neighbours residing in the vicinity rushed to the place of the
incident and immediately shifted her to the hospital. The deceased
succumbed to the burn injuries after a period of one week. The cause
of death as usual is septicemia.
5. The mother of the deceased Tippavva Chandru Patil, lodged an FIR
dated 03-01-2013 which came to be registered as crime No. 2 of
2013 in Mudalagi Police Station, Mudalagi Circle, District Belagavi,
Karnataka. The first information report reads thus:-
“The accused persons mentioned herein are the husband,
mother-in-law and father-in-law of Geetha, daughter of the
complainant and the said accused persons looked after
Geetha cordially for 1 year after marriage but then they have
not only ill-treated her physically and mentally by insisting
her to wake up early in the morning and do the household
chores and to go to the house of others to work but also
pressurized her to bring an amount of Rs.5,000/- from her
maternal house and since she did not bring money from
her maternal house, the accused person had the intention
to kill her and poured kerosene on her and set fire and
tried to kill her and thereby committed offence.”
6. On the FIR being registered the investigation started. The Tehsiladar
of the area was requested to reach the hospital for the purpose of
recording of the dying declaration of the deceased. The Tehsildar
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within four hours of the incident reached the hospital and recorded
the dying declaration Exhibit-46.
7. The statements of various witnesses, more particularly, the neighbours
who had brought the deceased to the hospital were recorded under
Section 161 of the Criminal Procedure Code, 1973(for short “the
Cr.P.C.”). After the deceased passed away her body was sent to post
mortem examination. The other articles collected in the course of
the investigation like clothes etc. were sent to the Forensic Science
Laboratory for the purpose of chemical analysis.
8. At the end of the investigation, Police filed charge-sheet against the
husband and mother-in-law respectively for the offence enumerated
above. The case being exclusively triable by the Sessions Court
came to be committed to the Court of Sessions Under Section 209
of the Cr.P.C.
9. The trial court proceeded to frame the charge against the accused
persons under Sections 498-A, 302, 114, 323 and 504 r/w Sec.34
of IPC respectively and Sections 3 and 4 respectively of Dowry
Prohibition Act to which they pleaded not guilty and claimed to be tried.
10. The prosecution examined the following witnesses in support of its
case:-
“PW1 Anand Shankar Sanawale
PW2 Laxman Ramappa Sanawale.
PW3 Sushila Dilip Sanawale.
PW4 Shabbir Samsher Sanawale.
PW5 Latha Shashikant Sanawale.
PW6 Julekha Gulabsab Sanawale.
PW7 Smt. Yallawwa Ramu Karale.
PW8 Krishna Mukappa Shivalli.
PW9 Malik Chandru Patil.
PW10 Prakash Shankar Sanawale.
PW11 Smt. Tippavva Chandru Patil.
PW12 Hanumanth Bhima Nayak.
[2025] 3 S.C.R. 163
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PW13 Dastagir Abdulsab Inamdar.
PW14 Dr. Adam Allasab Nadaf.
PW15 Dr.Gopal Ramu Wagamude.
PW16 Shivanand Basavanthappa Dhulai.
PW17 Suresh Shankar Murgod.
PW18 Maruti Yallappa Padadalli.
PW19 Anil Balappa Padedar.
PW20 Lakkappa Durgappa Taddi.
PW21 Oudram Hammabba Beary
PW22 Sureshbabu Rudrappa Bandiwaddar.
PW23 Sharanappa.M.Olekar.
PW24 Mrthunjay Irayya Mathapati.
PW25 Dr.N.Sujatha Nanjegouda”
11. The prosecution also led the following pieces of documentary
evidence:-
“(i) Ex.P.8 Mahazar of place of occurrence
(ii) Ex.P.27 Post Mortem Report
(iii) Ex.P.30 Opinion of the Doctor before recording the Dying
Declaration (PW15)
(iv) Ex.P.30 Opinion of the Doctor before recording the Dying
Declaration (PW25)
(v) Ex.P.46 Dying Declaration
(vi) Ex.P.54 FSL Report”
12. Upon closure of the recording of the evidence, the trial court recorded
the further statement of both the accused persons under Section
313 of the Cr.P.C. in which both the accused said that they were
innocent and had been falsely implicated.
13. Upon appreciation of the oral as well as documentary evidence on
record, the trial court recorded a finding that the prosecution had
failed to establish its case beyond reasonable doubt and accordingly
acquitted both the accused.
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14. The State being dissatisfied with the judgement and order of acquittal
passed by the trial court went in appeal before the High Court. The
High Court reversed the finding of acquittal and held both the accused
guilty of the alleged offence. The High Court ultimately sentenced
them to life imprisonment with fine.
15. In such circumstances, referred to above, the appellants are here
before this Court with the present appeal.
16. Mr Faeek-ul-Farooq, the learned counsel appearing for the appellants
vehemently submitted that the High Court committed an egregious
error in reversing a well-reasoned judgement of the acquittal.
According to him, even if a different view is possible on the evidence
on record, the High Court as an Appellate Court should be slow in
reversing the acquittal unless the High Court comes to the conclusion
that the findings recorded by the trial court are perverse or contrary
to the evidence on record.
17. He would submit that the High Court committed a serious error in
relying upon the dying declaration of the deceased recorded by the
Tehsildar. According to him having regard to the medical evidence on
record the dying declaration should be discarded as the deceased
at the relevant point of time was not in a fit condition of mind to
speak anything.
18. He submitted that so far as the appellant no.1 i.e. the husband is
concerned, there is no case at all against him.
19. He would submit that the deceased neither in the oral dying declaration
made before the Doctor nor in the dying declaration recorded by the
Tehsildar has said anything against the husband. On the contrary,
according to the learned counsel the deceased in the dying declaration
before the Tehsildar has said that the husband poured water on her
to extinguish the fire.
20. In such circumstances, referred to above, the learned counsel prayed
that there being merit in his appeal the same may be allowed and
the accused persons be acquitted.
21. On the other hand, Mr.Singhvi, the learned counsel appearing for the
State submitted that no error not to speak of any error of law could
be said to have been committed by the High Court in reversing the
acquittal and holding the appellants herein guilty of the offence of
[2025] 3 S.C.R. 165
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murder. He would submit that the only thing that weighed with the
trial court in disbelieving the dying declaration is the fact that all other
witnesses, more particularly, the neighbours had turned hostile and
failed to support the case of the prosecution.
22. According to Mr. Singhvi, the oral dying declaration made by the
deceased before PW-15 Dr.Gopal Ramu Wagamude and the dying
declaration before the Tehsildar exhibit P-21 is sufficient enough to
at least hold the appellant no.2 guilty of the alleged crime.
23. In the last Mr. Singhvi tried to develop an argument that although
the husband may not be directly involved or in other words has not
been directly implicated in the alleged crime still it is established that
he was present in the house and it was expected of the husband
to take all necessary precautions or steps to save his wife and the
failure or omission on his part would indicate the common intention
shared by him along with his mother.
24. Mr. Singhvi also tried to invoke Section 106 of the Evidence Act
arguing that something within the personal knowledge of the husband
should have been disclosed by the husband in his further statement
recorded under Section 313 of the Cr.P.C. In the absence of any
plausible explanation the High Court rightly held the husband also
guilty with the aid of Section 34 of the IPC.
25. In such circumstances, referred to above, Mr. Singhvi prayed that
there being no merit in this appeal, the same may be dismissed.
ANALYSIS:
26. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgement?
27. We first start with the dying declaration recorded by the Tehsildar.
28. The dying declaration exhibit-46 recorded by the Tehsildar reads thus:-
“Question No.1: Are you conscious and in a sound state of mind?
Answer: Yes
Question No.2: Are. you in a state to speak?
Answer: Yes
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Question No.3: Where are you now?
Answer: General Hospital, Gokak.
Question No.4: When and who brought you here and by what
means?
Answer: The people belonging to my lane brought me here
yesterday in ambulance at about 8~30 p.m.
Question No.5: Who attacked you?
Answer: My mother-in-law poured kerosene on me and my
mother-in-law Jaitunabi lit matchstick and threw on me and
set fire.
Question No.6: Give their name and address?
Answer: Jaitunabi Sanavale
Question No. 7: How do you identify her?
Answer: I identify her.
Question No.8: How did you sustain injury?
Answer: I have sustained injuries by fire.
Question No.9: What are the weapons used and describe the
shapes?
Answer: Kerosene and matchstick.
Question No.10: In which place you are attacked?
Answer: In the house situated in Mudalagi.
Question No.11: Can you identify wounds on your body?
Answer: Yes.
Question No.12: How and in what manner you have sustained
injuries?
Answer: Burnt by pouring kerosene.
Question No.13: What was the intention behind the attack?
Answer: I was in house and in the evening there was quarrel
due to my children and at that time my mother-in-law Jaitunabi
Sanavale got enraged due to quarrel and poured kerosene
[2025] 3 S.C.R. 167
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on me and when I was going to bathroom, my mother-in-law
Jaitunabi lit matchstick and threw it on me. My husband Vasant
splashed water on me but the fire did not extinguish and at
that time the residents of the lane gathered and took me in
ambulance to General Hospital at about 8.30 p.m.”
29. In the aforesaid context we shall now look into the oral evidence of
the Tehsildar. The Tehsildar PW-21 namely Oudram in his examination
in chief has deposed thus:-
“On 3-1-2013 when I was discharging my duty as Tahsildar
Gokak. I, received requisition from Mudalagi police station as
per Ex.P.42 which was received in my said office.
On the same day I went to Govt. hospital Gokak and wrote a
letter to Medical Officer, Govt hospital Gokak as per Ex.P.32
seeking his opinion whether Geeta was able to give any
statement, which bears my signature Ex.P. 32 (b). The said
Medical Officer in Ex.P.32 has endorsed that patient was able
to give oral statement.
Accordingly, I have recorded dying declaration of the said Geeta.
She for questioning who, when and how she was brought to
hospital, she answered that the residents of her lane brought
her on previous night at 8.30 pm by ambulance.
For questing who assaulted her, she replied her mother-in-law
had poured kerosene and aunt, namely- Jaitunabi, set her fire
my matchstick.
For questioning whether she could identify her, she replied
that she could. For questioning how she sustained injuries,
she replied she sustained burn injuries. For questioning where
crime was committed, she replied that at home at Mudalagi.
For questioning the intention of the crime she replied when she
was there in house in the evening, there was quarrel because
of her children. Her mother-in-law enraged by the said quarrel
poured kerosene on her. When she was going to bathroom her
mother-in-law Jaitunabi, lighted match stick and threw on her.
Her husband, Vasant, splashed water on her. The fire did not
extinguish. At that time the people from her lane gathered and
took her to hospital at 8.30 pm by an ambulance.
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Since her palms were burned I took finger impression of her
left toe on the said dying declaration.
Afterwards I have signed said dying declaration and the Medical
Officer has also signed the same. On 4-2-2013 I received
requisition, marked Ex.P. 44, seeking to issue true copy of
dying declaration of deceased Geeta. On 4-2-2013 I sent a
letter, with one true copy of dying declaration and one sealed
envelope containing original dying declaration to CPI, marked,
Ex.P.45, which bears my signature Ex.P.45(a)
(In the open court a sealed cover received from Addl. JMFC,
Gokak is opened.)
The dying declaration of Geeta is Ex.P.46;my signature is Ex
P.46(a)(b);The left toe impression of Geeta there-in is Ex.P.46(c);
The signature of medical officer there-in is Ex.P.46(d). I have
recorded the dying declaration of Geeta on 3-1-2013 from 12.15
p.m. to 12.25 p.m.”
30. Unfortunately, there is no cross examination worth the name of the
Tehsildar. Nothing substantial could be elicited through the cross
examination thereby to disbelieve that the deceased was not in a
fit state of mind to give a dying declaration
31. We now proceed to look into the evidence of Dr. Gopal Ramu
Wagamude Exhibit 17 (PW-15). Dr. Gopal Waghmude in his
examination-in-chief as deposed as under:-
“I have been serving as Senior Specialist in General
Hospital, Gokak, since 2011. On 02.01.2013 at about
9.30 p.m., Anand S. Sanavale had brought Geetha
Vasant Sanavale, aged about 28 years; R/o Mudalagi,
to our Hospital requiring treatment for burn injuries. As
per the information given by Geetha; her mother-in-law
poured kerosene on her and set her ablaze. She also
informed that this incident occurred on the same day at
about 8.00 p.m. On examining her, she was in conscious
state. She was telling that she was feeling thirsty. When
she was examined, her B.P was 90/70 and her pulse
was palpitating and kerosene smell was coming out of
her body. On examining her, normal burn injuries were
found on her face and neck, Deep burn injuries were
[2025] 3 S.C.R. 169
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found on her right hand, left hand, right leg and left leg.
Deep burn injuries were found on abdomen and back
and all these injuries appeared reddish in colour. All
these injuries were grievous in nature and also fresh in
nature. Nearly 90% of burn injuries were found. I have
given treatment to the said as in-patient. I have also given
treatment to her on 03.01.2013. Except me, General
Surgeon has also provided treatment to this patient.
On 03.01.2013, A.S.I of Mudalagi Police station gave a
requisition requesting to know whether the patient is in the
condition to give statement or not. The document which
is shown to me now is the office copy of the requisition
which was given to me on that day. It has been marked
as Ex.P.30. Ex.P.30 bears my signature about receiving
it. In Ex.P.30, I have written my opinion that the patient
is in the condition to give statement. It has been marked
as Ex.P.30 (a). I have furnished wound certificate about
the injuries. The document which is shown to me now is
the wound certificate that I have furnished. It has been
marked as Ex.P.31. The signature of witness has been
marked as Ex.P.31 (a). The document which is shown to
me now is the office copy of the requisition given by the
Tahsildar to N. Sujatha, Junior Specialist of our Hospital.
The said requisition bears signature of N. Sujatha. The
said document has been marked as Ex.P.32. In Ex.P.32,
Junior Specialist Sujatha has given opinion and affixed
signature by stating that the patient is in the condition
to give statement. It has been marked as Ex.P.32 (a).
When a person pours kerosene on another person, there
are chances of sustaining injuries found in Ex.P.31. The
above-mentioned patient was referred to KIMS Hospital,
Hubballi from our hospital for further treatment.”
32. Again, there is no cross examination of Dr. Wagamude. N o t h i n g
substantial could be elicited through the cross examination of the Dr.
so as to disbelieve the oral dying declaration made by the deceased
before him.
33. However, what is pertinent for us to note is that nowhere the husband
figures. It is only the mother-in-law, who figures in the dying declaration
as well as oral evidence of the Doctor and the Tehsildar.
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34. We also looked into the evidence, so as to ascertain whether the
deceased was in a fit condition to make the dying declaration or not.
There is nothing on record to indicate that she was unable to talk
or was not conscious.
35. To a very pertinent question put by us to Mr. Singhvi as to what
weighed with the High Court in holding the husband guilty of the
alleged offence, he invited the attention of this Court to para 30 of the
impugned judgement. In para 30, the High Court has observed thus:-
30. From the very statement of Geetha, cruelty to her in
the hands of the accused persons is established invariably
and without iota of doubt. The cause of death is burn
injuries and the burn injuries are established to have been
inflicted by accused Nos.1 and 2, they are charged with
common intention. If the accused No.1 was really about
to save his wife, he could have done it when she was in
murderous condition by sustaining injuries to the extent
of 90-95% inflicted in his person in his presence and in
the presence of hostility of himself and his wife, he never
bothered even to take her to treatment. He wanted to
ensure that she dies. In this connection, the offence may
be with respect of commission or omission.”
36. The plain reading of para 30 referred to above would indicate that what
weighed with the High Court in holding the husband-appellant guilty
is the fact that he never bothered to take his wife to the hospital as
he wanted to ensure that she does not survive. Therefore, according
to the High Court, the husband could be said to be guilty having
shared common intention with his mother. We have not been able
to understand exactly what the High Court wants to convey.
37. Be that as it may, we have reached the conclusion that there is no
cogent and reliable evidence to hold the husband-appellant guilty
of the alleged offence even with the aid of Section 34 of the IPC.
Section 34 of the IPC reads thus:-
“34. Acts done by several persons in furtherance of
common 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.”
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38. If there is one decision explaining Section 34 IPC which could be
termed as locus classicus then the same is the Allahabad High Court
decision in the case of Om Prakash v. State reported in 1956 CrLJ
452. Justice M.H. Beg (as His Lordship then was) has beautifully
explained the provision and its applicability.
39. In order that an intention should be common, it should be attributable
to every member of the group. This is also clarified by the fact that
the section itself characterises the common intention to be the
‘common, intention of all’. Section 34, IPC, therefore, does not ignore
the intention of the individual offender.
40. It only adds some more persons in the commission of the offence
and postulates that the same intention was jointly existing in the
mind of every individual member of the group as well. It may be
that the intention was alleged to be common, but that only means
that every member shared it along with others and not the some
members shared it and others did not.
41. The common intention required under Section 34 Penal Code need
not, however, be identical with the guilty intention or ‘mens rea’ which
is the ingredient of the offence and is to be distinguished from it. The
latter might be coincident with or collateral to the former.
42. On the other hand, the position under Section 149, IPC, is very
different. The charge framed under Section 149, IPC, disregards
the intention of the individual members of the assembly altogether,
and concentrates merely on the common object of the assembly
as a whole. The result of this position is that there may be cases
in which a person might be guilty of an offence under Section 149,
IPC though he himself had no intention to commit it or was even
unaware of its commission.
43. There may even be cases where a person might be found guilty of
an offence under Section 149 though it was committed quite contrary
to his own intention. Supposing for instance, an unlawful assembly
is formed with the object of wiping out all members of a particular
community residing in a mohalla. While this assembly is busy in
its unlawful activities, some of its members might come across a
member of the other community and might in prosecution of the
common object proceed to murder him.
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44. But a particular individual, say X, who is a member of this very
unlawful assembly might discover that Y was his old friend. X might
not want that this old friend of his should be killed, and in spite of
his wishes, and contrary to his intention, Y might be murdered.
45. If it so happens, then X who was a member of the unlawful assembly,
might be held to be guilty of an offence committed by another
member of the said assembly, even though the offence itself was
committed quite contrary to his desires and even in opposition to
his own intention provided it is shown that X continued to remain a
member of the assembly at the time of the offence and the offence
itself was directly or indirectly within the purview of the common
object of the assembly.
46. The reason is that the criminal liability under Section 149, IPC is
determined not by the intention of the various individual members
constituting it but by the common object of the assembly as a whole.
The result is that when a charge against a person is framed for an
offence under Section 149, IPC, read with a relative section, and the
person is convicted of the offence under the relative section alone,
he might legitimately complain that his own mental state having
never been put into issue under the charge at all, he was taken by
surprise in the matter and thereby misled and prejudiced.
47. For the purpose of the above discussion I am presuming that a charge
framed under Section 149, IPC is the usual charge under which the
individual authorship of the offence is not defined or specified, and
the offence is alleged in the charge to be the act of an undefined
member of the assembly. The position under Section 34 is different.
The connection here between the offender and the offence is far
closer and deeper.
48. Under Section 34 every individual offender is associated with the
criminal act which constitutes the offence both physically as well as
mentally. That is, he is a sharer not only in what has been described
as a common act but also in what is termed as the common intention,
and, 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.
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Vasant @ Girish Akbarasab Sanavale & Anr. v.
The State of Karnataka
49. To put it in other words, whereas under Section 149, IPC the entire
emphasis both in respect of the physical act as well as in respect of
the mental state is placed on the assembly as a whole, under Section
34, IPC, the weight in respect of both is divided and is placed both
on the individual member as well as on the entire group.
50. Section 34, IPC, as contrasted with Section 149, IPC, therefore,
balances the individual and the general aspect, although while
taking into account the individual aspect it conceives it as part and
parcel of the general aspect. In this sense, Section 34, IPC, is far
more restricted than Section 149, IPC. If, therefore, a person is
charged with an offence with the application of Section 34, IPC,
and convicted for the substantive offence only, it is not so easy for
him to advance the plea that he was not aware that the matter had
any individual aspect.
51. Participation of the individual offender in the criminal act in some
form or the other which is the leading feature of Section 34, IPC
differentiates it not only from Section 149, IPC, but also from other
affiliated offences like criminal conspiracy and abetment. A bare
agreement between two or more persons to do or cause to be done
an illegal act might make a person liable for the offence of criminal
conspiracy as defined in Section 120, IPC. If the said agreement
is to commit offence, then such an agreement is by itself enough
to make a man guilty and no overt act apart from the agreement
would be necessary.
52. If, however, the agreement is to commit an act which is not
tantamount to an offence, then some overt act in pursuance thereof
is necessary. Such overt act may, however, be performed by any
person who is a party to the agreement and not necessarily by the
particular accused who might be guilty of the offence without having
participated in the act.
53. On the other hand, under Section 34, IPC, a mere agreement,
although it might be a sufficient proof of the common intention, would
be wholly insufficient to sustain a conviction with the application of
Section 34, IPC, unless some criminal act is done in furtherance of
the said common intention and the accused himself has in some way
or the other participated in the commission of the said act.
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54. The offence itself would be complete even though the act abetted is
not committed; or, even if the act is committed, the abettor himself
has not participated in it. Thus, actual participation in the commission
of the offence, which is a condition precedent of Section 34 and is
its main feature, again distinguishes it from the offence of abetment.
55. Section 34, IPC, compendiously summarises the liability imposed
under English Law on what are therein called as principal in the
first degree and principal in the second degree and assimilates the
principles underlying both by compressing them in one section and
treating them as what have been called accessories at the fact as
opposed to what are termed as accessories before the fact and
accessories after the fact.
56. In this connection, Mr. Singhvi the learned counsel for the State
argued that a person who is present on the spot at the time of the
commission of the offence would be guilty by the application of
Section 34, IPC. although such a person did not do anything.
57. A person present on the scene might or might not be guilty by the
application of Section 34, IPC. If he is present on the scene for the
purpose of participating in the offence, he would certainly be guilty
as a participator in the offence. On the other hand, if he is present
there merely as a spectator, he would not be guilty.
58. Thus, for example a person who is an eyewitness of the incident is
present at the spot as well as a person who is a confederate of the
assailant. The former is not guilty because he is present merely to
see the commission of the crime. On the other hand, the latter is
guilty because he is present for the purpose of seeing that the crime
is committed. In other words, presence on the spot for the purpose
of facilitating or promoting the offence is itself tantamount to actual
participation in the criminal act.
59. As observed by the Privy Council in the case of Barendra Kumar
Ghosh v. Emperor, AIR 1925 PC 1 (C), “It is to be remembered that
in crimes as in other things ‘they also serve who only stand and
wait’”. The following observations of Mookerjee, J. in the case of
Emperor v. Barendra Kumar Ghosh, AIR 1924 Cal 257 (FB) (D) are
relevant in this connection:
“It is the expectation of aid, in case it is necessary to the
completion of the crime and the belief that his associate is
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Vasant @ Girish Akbarasab Sanavale & Anr. v.
The State of Karnataka
near and ready to render it which encourage and embolden
the chief perpetrator, and incite him to accomplish the act.
By the countenance and assistance which the accomplice
thus renders, he participates in the commission of the
offence.
60. It is, therefore, sufficient to hold a party as principal, if it is made
to appear that he acted with another in pursuance of a common
design; that he operated at one and the same time for the fulfilment
of the same pre-concerted end, and was so situated as to be able
to furnish aid to his associates with a view to insure success in the
accomplishment of the common enterprise”, (p. 280)
61. In a similar strain are the following instructive observations in the
judgment of Richardson, J., in the same case:
“Moreover, it is impossible to say what might have
happened, if one man alone had set out to accomplish
the murder. Without the support moral and physical, of a
comrade, his resolution might have failed him and his pistol
remained in his pocket or diminution of confidence might
have interfered with his aim; or again, he might have been
successfully resisted and put to flight”, (p. 296).
62. At p. 308 col. (1) of the same case Ghose J. has quoted the following
illuminating passage from Poster’s Criminal Law:
“Several persons set out together, or in small parties,
upon one common design, be it murder or other felony, or
for any other purpose unlawful in itself, and each taketh
the part assigned to him; some to commit the act, others
to watch at proper distances and stations to prevent a
surprise, or to favour, if need be, the escape of those who
are more immediately engaged. They are all, provided
the act be committed, in the eye of the law present at
it; for it was made a common cause with them, each
man operated in his station at one and the same instant
towards the same common end, and the part each man
took tended to give countenance, encouragement and
protection to the whole gang, and to ensure the success
of their common enterprise. To sum up persons executing
parts of a crime separately in furtherance of a common
intention are equally guilty”.
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63. It is, therefore, not correct for the appellant’s learned counsel to say
that a person present on the spot does nothing. He plays a very
important part in the scheme of the commission of the offence. The
potential utility of a person who is present as a guilty confederate
on the scene of offence cannot be overestimated.
64. The word ‘criminal act’ is used in Section 34, IPC in the broadest
possible sense. It would cover any word, gesture, deed or conduct
of any kind on the part of a person whether active or passive, which
tends to support the common design.
65. A ‘criminal act’ in Section 34, IPC consists of the entire bundle of
acts or omissions tied together with the chain of common intention
that have combined to constitute the offence. The acts that it might
comprise within itself may be similar or diverse.
66. Such acts may be performed simultaneously, successively or at
intervals. Instances to illustrate such acts are of a multifarious type.
For example, two persons may beat a man at the same time, and
if their acts are in furtherance of a common end, Section 34 IPC,
would be attracted. The acts here are simultaneous.
67. Again, for example, two jailors whose duty it is to attend alternately
on a prisoner may conspire to starve him to death. In pursuance of
this conspiracy, they may omit to supply food to him. In this case
the conduct consists of omissions and the acts of the accused are
successive and not simultaneous. Or, for example, two persons may
conspire to forge a document.
68. One may forge a part of it on one day and the other may forge the
remaining part of it after a gap of a month. In this instance the acts
of both the persons would attract Section 34, IPC even though there
is an interval between acts performed by each of the two persons
separately.
69. Such act may consist of a mere gesture or expression or conduct that
may provide a signal for offence or help the confederate in identifying
the victim. Thus, for example two persons may conspire to kill a third
man. One may know him and the other may not know him.
70. It may be agreed between the two that the person who knows him will
stand near the man who would be the victim and thereby enable the
person to whom the part of killing is assigned to identify the victim.
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Vasant @ Girish Akbarasab Sanavale & Anr. v.
The State of Karnataka
If the scheme is carried out, both would be guilty under Section 34,
IPC, even though the man who stood near the victim was merely
present on the spot and apparently did nothing. If, however, the
scheme is analysed, it would appear that by his presence near the
victim he played a very important part.
71. In fact, it was his presence near the victim that really contributed to
the successful commission of the crime. The part may consist of a
mere omission. Thus, for example, a person who is employed as
a sentinel to guard the room of the deceased might agree with the
murderer to allow him entry into the room with a view to enable him
to accomplish the murderous deed.
72. If the murderer turns up according to the pre-arranged plan and the
sentinel deliberately omits to prevent his entry into the room, he has
done an act which has contributed as effectively to the perpetration
of the murder as the actual act of killing itself.
73. In fact, the murder might not have been possible without the omission
on his part. The various acts may be quite diverse in nature. Thus, if
two persons conspire to commit theft and devise a plan according to
which one of them would lure the shopkeeper away to an adjoining
room on the pretext of having conversation with him thereby leaving
the shop unprotected in order to enable the other persons to commit
theft and the scheme is executed according to the plan, both of them
would be equally guilty of theft by the application of the provisions of
Section 34, IPC although their respective acts are of a very different
type.
74. In such a case, although only one man has committed the actual
theft and the other has done nothing except entering into a friendly
chat with the shopkeeper with a view to secure his removal from
the scene, yet the part played by the latter is no less important than
that of the former.
75. It is, therefore, evident that every person charged with the aid of
Section 34, must in some form or the other participate in the offence
in order to make him liable thereunder. For the above reason, I find
myself unable to endorse the argument of the appellants’ learned
counsel that a guilty associate merely present on the spot cannot
be said to participate in the commission of the offence.
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76. The element of participation in the commission of the offence is the
chief feature that distinguishes Section 34, IPC from Section 149,
IPC and other kindred sections. This has been emphasised in a
large number of decided cases.
77. In Shreekantiah Ramayya Munipalli v. State of Bombay, (S) AIR
1955 SC 287 (E) while expounding the meaning of Section 34, IPC
Bose, J. observed as follows:—
“It is the essence of the section that the person must be
physically present at the actual commission of the crime.
He need not be present in the actual room; he can, for
instance, stand guard by a gate outside ready to warn his
companions about any approach of danger or wait in a car
on a nearby road ready to facilitate their escape, but he
must be physically present at the scene of the occurrence
and must actually participate in the commission of the
offence in some way or other at the time the crime is
actually being committed. The antithesis is between the
preliminary stages, the agreement, the preparation, the
planning, which is covered by S. 109, and the stage of
commission when the plans are put into effect and carried
out. Section 34 is concerned with the latter”, (p. 293).
78. At page 294, col. (1) of the same judgment it is observed that:—
“The emphasis in S. 34 is on the word ‘done’. When a
criminal act is ‘done’ by several persons, it is essential that
they join in the actual ‘doing’ of the act and not merely in
planning its perpetration”.
79. In the same case, the following observations of their Lordships of
the Privy Council in the case in AIR 1925 PC 1 (C) on this point
were cited with approval:
“Participation and joint action’ in the actual commission of
crime’ are, in substance, matters which stand in antithesis
to abetments or attempts”.
80. The distinction between Section 34, IPC, and Section 149, IPC in
this regard has been brought out by Lord Sumner in the well-known
case in AIR 1925 PC 1 (C) thus:
“There is a difference between object and intention, for,
though their object is common, the intentions of the several
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Vasant @ Girish Akbarasab Sanavale & Anr. v.
The State of Karnataka
members, may differ and indeed may be similar only in
respect that they are all unlawful, while the element of
participation in action which is the leading feature of S.
34, is replaced in S. 149 by membership of the assembly
at the time of the committing of the offence”.
81. In Bashir v. State, AIR 1953 All 668 (F) which is a Bench decision
of the Allahabad High Court, it was observed by Desai J. that:—
“All the persons who are sought to be made liable by
virtue of S. 34 must have done some act which is included
in the ‘criminal act’. One who has not taken any part in
doing the criminal act cannot be made liable under the
section”, (p. 671 col 1).
82. In Faiyaz Khan v. Rex, AIR 1949 All 180 (G) it was held that:—
“Section 34 refers to cases in which several persons both
intend to do and do an act. It does not refer to cases
where several persons intend to do an act and some one
or more of them do an entirely different act. In the latter
class of cases S. 149 may be applicable, but S. 34 is
not”, (p. 184 col. 1).
83. In AIR 1924 Cal 257 (D) which is a Full Bench case of the Calcutta
High Court, Cuming J. observed that:
“The expression criminal act done by several persons
includes the case of a number of persons acting together for
a common object and each doing some act in furtherance
of the final result which various acts make up the final
act”, (p. 312 col. 2).
84. In Aydrooss v. Emperor, AIR 1923 Mad 187 (2) (H) it was held that
in order to justify the application of Section 34, evidence of some
distinct act by the accused, which can be regarded as part of the
criminal act in question, must be required. (Vide h.n. (b)).
85. To the same effect are the following observations of Sharpe J. in
Abdul Kader v. Emperor, AIR 1946 Cal 452 (I) which is a Bench
decision of the Calcutta High Court:
“We think it desirable to draw attention to the decision in
Fazoo Khan v. Jatoo Khan AIR 1931 Cal 643 (J) in which
it has been observed that ‘all the accused persons can
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be found guilty of an offence constructively under Section
34 of the Penal Code only on a finding that each of them
took some part or other in, or towards, the commission
of the offence”.
86. It is true that to convict any particular accused constructively under
Section 34 of an offence, say of murder, it is not necessary to find
that he actually struck the fatal blow, or any blow, but there must be
clear evidence of some action or conduct on his part to show that he
shared in the common intention of committing murder”, (pp. 457-458).
87. The net result of the above discussion is that although Section 34
deals with a criminal act which is joint and an intention which is
common, it cannot be said that it completely ignores or eliminates
the element of personal contribution of the individual offender in
both these respects.
88. On the other hand, it is a condition precedent of Section 34, IPC,
that the individual offender must have participated in the offence in
both these respects. He must have done something, however slight,
or conduct himself in some manner, however nebulous whether by
doing an act or by omitting to do an act so as to indicate that he
was a participant in the offence and a guilty associate in it. He must
also be individually a party to an intention which he must share in
common with others.
89. In other words, he must be a sharer both in the ‘criminal act’ as well
as in the ‘common intention’ which are the twin aspects of Section
34, IPC. In view of the above position, it is difficult for the accused
to legitimately urge before the Court that owing to the mention of
Section 34, IPC, in the charge, he was misled or prejudiced in his
defence by being persuaded to presume that all consideration of his
individual liability was completely shut out as a result thereof. He
would be presumed to know the law on the point and if, in spite of
it, he deluded himself into any such belief, he would be doing so at
his own peril. [See: Om Prakash(supra)]
90. As held by this Court in Suresh Sakharam Nangare v. The State of
Maharashtra, 2012 (9) Judgements Today 116, if common intention is
proved but no overt act is attributed to the individual accused, Section
34 of the code will be attracted as essentially it involves vicarious
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The State of Karnataka
liability but if participation of the accused in the crime is proved and
common intention is absent Section 34 cannot be invoked. In other
words, it requires a pre-arranged plan and pre supposes prior concert
therefore there must be meeting of mind.
91. Section 106 of the Evidence Act was also pressed into service
by Mr. Singhvi appearing for the State. We are of the view that it
has no application in the present case. It is true that when crime
is alleged to have been committed inside the four walls of the
house and that too in secrecy then the family members residing
in the house are the best persons to know and explain as to what
had actually happened. Let us for the time being proceed on the
footing that the husband was very much present at the time of
the incident however there is nothing to indicate that he shared
common intention with his mother. When the mother-in-law poured
kerosene on the deceased and set her on fire, it is possible that the
husband out of sheer fright might have run away from his house
after trying to extinguish fire by pouring water on the burning body
of his wife. For applicability of Section 106 so as to implicate the
husband also in the alleged crime the prosecution has to as a
condition precedent lay the foundational facts prima facie indicating
his involvement or participation in the alleged crime. His sudden
disappearance after the incident is not sufficient to infer common
intention.
92. In the overall view of the matter, we have reached the conclusion
that the High Court rightly held the mother-in-law guilty of the alleged
crime. However, the High Court at the same time committed an error
in holding the husband-appellant no.1 guilty of the offence of murder
with the aid of Section 34 IPC.
93. In the result, this appeal succeeds in part. The judgement and order
of conviction passed by the High court so far as the appellant no.2
is concerned is hereby affirmed. So far as the appellant no.1 is
concerned, the appeal succeeds and is hereby allowed. The appellant
no.1 is acquitted of all the charges.
94. We are informed that mother-in-law is already in jail.
95. We are further informed that husband-appellant no.1 is also in jail.
He shall be released forthwith, if not required, in any other case.
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96. The appeal stands partly allowed in the aforesaid terms.
97. Pending application(s), if any, stand disposed of.
Result of the case: Appeal partly allowed.
†
Headnotes prepared by: Nidhi Jain
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