Ashok Bhushan, J.— These appeals have been filed against the judgment of the High Court dated 5-5-2014 2014 SCC OnLine Bom 527 dismissing the criminal appeals filed by the appellant and allowing the criminal appeals of the complainant as well as that of the State of Maharashtra.
2. As per the prosecution story, on 21-10-2010, at about 8 a.m. in the morning, the complainant was standing at Bazar Pati Chowk and his brother Sardarkha was standing at some distance. At that time, it was alleged that all the accused came there and asked the complainant to allow them to take water from the common well for one day due to load shedding. The complainant refused to give excess water and asked the accused to take water by rotation. At that time, they abused the complainant and Accused 1 i.e. Nasibkha assaulted him. His brother Sardarkha who was standing at some distance, intervened. Thereafter, Accused 1 and 2 i.e. Nasibkha and Asif Khan went to their house on motorcycle and immediately returned. Accused 1 challenged Sardarkha to stop him from drawing water. Sardarkha tried to convince him. Accused 1 assaulted Sardarkha by knife on his right rib and Accused 2 caught hold the neck of Sardarkha. Accused 3 and 4 i.e. Jabbarkha and Ansarkha punched the complainant. Immediately after the incidents, Sardarkha was taken to Ghati Hospital, Aurangabad by jeep and the complainant and others followed him in another jeep. He was admitted in the hospital at about 10 a.m., where the doctor declared him dead.
3. A first information report was lodged on the same day under Sections 302, 323, 504 and 506 read with Section 34 of the Penal Code, 1860 against all the accused, who were named in the FIR. The accused were arrested on 22-10-2010. On 26-10-2010, Accused 1 gave a memorandum of statement under Section 27 of the Evidence Act and consequent to the said memorandum, weapon was recovered. After completion of the investigation, charge-sheet was filed under the aforesaid sections.
4. All the accused were sent for trial. In the trial, the complainant PW 1 Kalekhan proved the prosecution case, other eyewitnesses, PW 2 Salimkha Abbaskha Pathan and PW 4 Ajijkha Sardarkha also proved the prosecution story, PW 5 Dr Navinkumar Varma proved the post-mortem report and PW 6 and PW 7 were panch witnesses. There were other formal witnesses, who deposed before the trial court. The trial court, vide its judgment dated 29-2-2012, after discussing the role of each of the accused, came to the following conclusion in para 39:
“39. There are four accused in the crime and as per the case of the prosecution, they shared common intention to commit offence. If the evidence of prosecution witnesses in this regard is perused, PWs 1, 2 and 4, who are eyewitnesses, categorically stated that Accused 2 caught hold the neck of Sardarkha and Accused 1 inflicted knife-blow on right rib. They have stated that Accused 3 and 4 were present and they assaulted the complainant by fist and blows. There is no evidence that Accused 3 and 4 provoked Accused 1 and 2 to attack. There is no evidence of any prior concert or meeting of mind of Accused 3 and 4 in sharing common intention of Accused 1 and 2. Before convicting the accused with the aid of Section 34 of the Penal Code, it has to be proved that there was pre-arranged plan to commit the offence.…”
5. The trial court held that complicity of Accused 1 and 2 i.e. accused Nasibkha and Asif Khan is established. The trial court, however, came to the conclusion that Accused 1 and 2 were not guilty of having committed offence under Section 302 read with Section 34 IPC, however, they can be convicted of having committed the offence punishable under Section 304 Part II read with Section 34; Accused 1 and 2 were sentenced to undergo imprisonment for 10 years and to pay a fine of Rs 5000. All the accused were acquitted of the offence punishable under Sections 323, 504 and 506 read with Section 34 of the Penal Code. Accused 3 and 4 were acquitted.
6. Against the judgment of the trial court dated 29-2-2012, the accused, the complainant and the State filed appeals. The accused were aggrieved by their conviction under Section 304 Part II, the complainant and the State were aggrieved of acquittal of the accused under Section 302 read with Section 34. The High Court after considering the entire evidence on record came to the following conclusions in paras 23 and 30: (SCC OnLine Bom)
“23. After analytical survey of the prosecution case, there is no doubt in our mind that Accused 2 Asif Khan caught hold neck of deceased Sardarkha and thereupon Accused 1 Nasibkha made a murderous assault by means of knife on deceased Sardarkha. Therefore, Accused 1 Nasibkha and Accused 2 Asif Khan are held to be guilty of homicidal death of deceased Sardarkha.
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30. True it is, they were demanding water for one more day from the first informant, which was refused by him, thereby enraging them to hurl abuses and picked up a quarrel with PW 1 Kalekha, which was intervened by the deceased. Refusal of giving water for one more day culminating into giving abuses to PW 1 Kalekha and even quarrel with him, may be most natural, however, on the intervention of the deceased it was pacified. Not only that, consistent evidence of the prosecution shows that thereafter both Accused 1 Nasibkha and Accused 2 Asif Khan left the place on motorcycle.
They arrived at the spot after ten minutes. This period was enough for their cooling in respect of the first incident, however, the prosecution evidence shows that after ten minutes, they, not only returned to the spot, but they returned with deadly knife with them. This act on the part of Accused 1 and 2 clearly establishes that with premeditation they returned to the spot. They returned to the spot with a specific intention. Further, from the evidence, it is clear that on reaching to the spot, they immediately caught deceased Sardarkha and gave knife-blow as per the role ascribed to them by the prosecution witnesses. This fact clearly establishes that both Accused 1 and 2 were nursing grudge against the deceased, because at the first instance it was the deceased who rescued PW 1 Kalekha from the quarrel with them.”
7. The High Court did not approve the reasoning of the trial court that there was no intention of the accused to kill the deceased. The High Court allowed the appeals of the State and the complainant and convicted Accused 1 and 2 under Section 302 read with Section 34 IPC. The criminal appeals filed by the accused were dismissed. Acquittal of Accused 3 and 4 was confirmed. Aggrieved against the judgment of the High Court, these appeals have been filed.
8. This Court heard the special leave petition on 6-2-2015 2015 SCC OnLine SC 1779 and dismissed the special leave petition qua Petitioner 1 i.e. Nasibkhan. Notice was issued in the special leave petition insofar as Petitioner 2 i.e. Asif Khan is concerned. These appeals, thus, are considered only on behalf of Asif Khan.
9. The learned counsel for the appellant submits that an altercation took place between the parties and consequent to that incident has happened due to sudden fight between the parties and there was no intention on the part of the accused to kill the deceased. He submits that at best the conviction could have been recorded only under Section 304 Part II as has been held by the trial court. He further submits that with regard to the appellant, in the first information report, although it is alleged that the appellant held hands of the deceased but in the evidence, it is sought to be stated that the appellant held the neck of the deceased. The learned counsel for the appellant further submits that there could be no conviction under Section 34 for the appellant since there is no evidence of any pre-planned murder of the deceased. The learned counsel for the appellant has placed reliance on the judgments of this Court in Kulwant Rai v. State of Punjab (1981) 4 SCC 245, Ramesh Vithalrao Thakre v. State of Maharashtra (2009) 17 SCC 438 and Surain Singh v. State of Punjab (2017) 5 SCC 796.
10. The learned counsel for the State, refuting the submission of the counsel for the appellant, contends that the High Court has rightly convicted the appellant under Section 302 read with Section 34 as after the first incident, when there was altercation between the parties, Accused 1 and 2 went back on the motorcycle and returned after 10 minutes with deadly weapon i.e. knife, by which the deceased was stabbed. The appellant held the neck of the deceased and Accused 1 stabbed the deceased. The crime was committed by Accused 1 and 2 with common intention, hence they have been rightly convicted under Section 302. It is submitted that the present is not a case for conviction under Section 304 Part II, as the accused after first incident returned and came back with deadly weapon and with intention to kill has stabbed the deceased. All the eyewitnesses have proved the prosecution case.
11. We have considered the submissions of the learned counsel for the parties and have perused the records.
12. The first submission of the learned counsel for the appellant is that, at best, the present was a case for conviction under Section 304 Part II and it was not a case for conviction under Section 302. The High Court has elaborately considered the evidence to find out as to whether conviction in the present case ought to have been under Section 302 or under Section 304 Part II as held by the trial court. The consideration of the High Court in paras 23 and 30 have already been extracted above. With regard to the observation of the trial court that it is not proved that the accused had intention to kill the deceased, the High Court held the following in paras 33 and 34: (Nasibkha case 2014 SCC OnLine Bom 527, SCC OnLine Bom)
“33. In the present case, the learned trial court has observed in its judgment para 43 and recorded a finding that, there was an intention on the part of Accused 1 and 2 to cause injury to the deceased, however, the learned court below in one breath gives reasoning that, from the material on record, it does not appear that the intention of the accused was to kill the deceased; however, in the next breath, the learned Judge reasoned that, Accused 1 was armed with knife, blade of which itself was 15.5 cm in length, and therefore, the accused should have been aware that if he stabbed the deceased, he may be acting in such a manner that the injury he caused is likely to cause death, and still the learned court below has acquitted Accused 1 and 2 under Section 302 of the Penal Code.
34. This appreciation on the part of learned court below, in our view, is perverse. Once the intention is established, and in the light of medical evidence and existence of the injury found on the dead body of Sardarkha, there is no escape but to record a finding of guilt against Accused 1 and 2 for having committed the offence under Section 302 of the Indian Penal Code.
The learned counsel for Accused 1 and 2 found it very difficult and could not bring their case in any of the Exceptions of Section 300 of the Indian Penal Code.”
13. The High Court has also noticed that Accused 1 and 2 after the first incident went back on a motorcycle and came after 10 minutes with deadly weapon i.e. knife, which had a blade of 15.5 cm. There can be no doubt about the intention of the accused, who held the neck of the deceased and Accused 1 stabbed. PW 5, Dr Naveenkumar Varma, who conducted the post-mortem proved in his evidence that Injury 17 was sufficient in the normal course to cause death. The learned counsel for the appellant submitted that the injury, which was caused on right flank region in right hypochondriac region was not on a vital part. The High Court while considering the injury has made the following observations: (Nasibkha case 2014 SCC OnLine Bom 527, SCC OnLine Bom para 15)
“15. … The said injury is mentioned at Column 17 in the post-mortem report Ext. 56, duly proved by Dr Navinkumar Varma (PW 5). According to Column No. 20 of post-mortem report Ext. 56, right 9th rib cut from lower margin in 0.5 cm area cut ends shows infiltration staining.
The doctor also noted haematoma on right flank region around stab injury dark red in colour. Liver stab wound of 3 × 0.3 × 11 cm in right lobe of liver, which he mentioned in Column 21 of post-mortem report.
According to autopsy surgeon Dr Varma, the cause of death is, shock and haemorrhage due to stab injury to liver. The doctor found that the injury was ante-mortem.”
14. The submission of the appellant that injury was not on vital part cannot be accepted. It is further to be noted that the judgment of the High Court convicting Accused 1 under Section 302 has already been upheld by dismissing the special leave petition on 6-2-2015 2015 SCC OnLine SC 1779 on behalf of Nasib Khan. We, thus, do not find any reason to take a different view to one taken by the High Court that the accused were liable for conviction under Section 302. In Kulwant Rai (1981) 4 SCC 245, one dagger-blow was given in epigastrium area. This Court noted that there was an altercation, there was no premeditation and the case was of a hit and run. In the above circumstances, the Court held that it was a case, which fall under Section 304 Part II, in para 3, the following has been held:
“3. When the matter was before the High Court it was strenuously urged that in the circumstances of the case Para 1 of Section 300 would not be attracted because it cannot be said that the accused had the intention to commit murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by Para 3 of Section 300 of the Indian Penal Code in that not only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstance in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, Para 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under Section 304 Part II of the Penal Code.”
The above case is clearly distinguishable since present is a case where Accused 1 and 2 after first incident, in which there was altercation with the informant and the deceased, returned back on motorcycle and came back after 10 minutes along with weapon, hence the above judgment is not applicable.
15. Coming to the case relied on by the appellant i.e. Ramesh Vithalrao Thakre (2009) 17 SCC 438 in the above case, the accused had previous enmity with one Ashok and they have gone to inflict injury on Ashok. Sister of Ashok, Rekha came in between and she received single injury on her chest. In the above circumstances, this Court held that case will fall under Section 304 Part II IPC. In paras 9 and 11, the following has been held:
“9. There is no denying the fact that one single injury was caused to the deceased by Ramesh when Rekha intervened to save her brother Ashok from being assaulted. The primary target of Ramesh was Ashok, who got saved when Rekha received the injury on her chest. After causing the single injury to Rekha, it is the prosecution case itself, that Ramesh did not cause any other injury to Rekha nor even to Ashok, PW 1.
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11. We, accordingly set aside the conviction and sentence of Ramesh for the offence under Sections 302/34 IPC and instead find him guilty for the offence under Section 304 Part II IPC and sentence him to five years' rigorous imprisonment and a fine of Rs 4000. In default of payment of fine, the appellant shall suffer rigorous imprisonment for a period of one year. The fine shall be paid within three months and on realisation shall be paid to the mother of the deceased, PW 2, Janabai.”
The above case in Ramesh Vithalrao Thakre (2009) 17 SCC 438 is clearly distinguishable since in that case, they had not gone to inflict injury on the deceased sister of Ashok, rather they had gone to inflict injury on Ashok and since she intervened to save her brother and got assaulted, it was not pre-planned. But, in the present case, Accused 1 and 2 after first incident, returned back on motorcycle and came back after 10 minutes along with weapon, hence, the above judgment is not applicable.
16. The third case relied on by the learned counsel for the appellant Surain Singh (2017) 5 SCC 796 was a case where this Court held conviction under Section 304 Part II on the ground that attack was not premeditated and pre-planned. In paras 21 and 23, the following has been held:( & 806)
“21. In the instant case, it is evident from the materials on record that there was bitter hostility between the warring factions to which the accused and the deceased belonged. Criminal litigation was going on between these factions. It is also proved from the material on record that the attack was not premeditated and preplanned. Both the parties were present in the Court of Executive Magistrate, Faridkot at the relevant time with regard to the proceedings under Sections 107/151 of the Code. When the appellant-accused objected to the presence of a member of the opposite side, the scuffle started between the parties which resulted into death of two persons. The conduct of the appellant-accused that he at once took out his kirpan and started giving blows to the opposite party proves that the attack was not premeditated and it was because of the spur of the moment and without any intention to cause death. The occasion for sudden fight must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset.
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23. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellant-accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of grave and sudden provocation and hence the accused is entitled to the benefit of Section 300 Exception 4 IPC.”
The above case is also clearly distinguishable and not applicable in the facts of the present case.
17. Now, we come to conviction of the appellant under Section 34. The submission made by the appellant is that there could be no conviction under Section 34 for the appellant since there is no evidence of any pre-planned murder of the deceased. Insofar as the submission of the learned counsel for the appellant that in the first information report, it has mentioned that the appellant had held hands of the deceased and in the evidence before the Court, it was mentioned that the appellant held the neck of the deceased. All the three eyewitnesses, PW 1, PW 2 and PW 4, who appeared before the Court, have stated that Asif Khan caught hold of the neck of Sardarkha and Accused 1 assaulted him by knife. Para 4 of the examination-in-chief of PW 1 is as follows:
“4. After some time they came back. At that time Accused 1 told me that how you will not allow me to take more water, I will see you. At that time Accused 2 Asif Khan caught hold neck of Sardarkhan and Accused 1 Nasibkhan assaulted him by knife on the right side of his stomach.…”
18. In the cross-examination, PW 1 again stated that Accused 2 caught hold of the neck of his brother. The evidence of PW 2 and PW 4 is also consistent that Asif Khan caught hold the neck of Sardarkha and Accused 1 assaulted Sardarkha on his right rib by knife. Whether, in the facts of the present case and the evidence on record, the appellant could be convicted under Section 302 with aid of Section 34 is a question to be answered.
19. The test for applicability of Section 34 in a fact situation of an offence has been clearly and categorically laid down by this Court. Section 34 IPC provides as follows:
“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.”
20. The judgment of the Privy Council in Mahbub Shah v. King Emperor 1945 SCC OnLine PC 5, (1944-45) 72 IA 148, AIR 1945 PC 118 has elaborately considered the ingredients under Section 34 and the said judgment of the Privy Council has been relied on and approved by this Court time and again. The Privy Council in the above case laid down that under Section 34, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. In para 13, the following has been laid down:
“13. In 1870, it was amended by the insertion of the words “in furtherance of the common intention of all” after the word “persons” and before the word “each,” so as to make the object of the section clear. Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say “the common intentions of all” nor does it say “an intention common to all”. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case.”
21. In Pandurang v. State of Hyderabad AIR 1955 SC 216, 1955 Cri LJ 572, Vivian Bose, J., speaking for the Bench considered the ingredients of Section 34 and relying on the Privy Council judgment in Mahbub Shah v. King Emperor 1945 SCC OnLine PC 5, (1944-45) 72 IA 148, AIR 1945 PC 118 laid down the following in paras 31 to 33: (Pandurang case AIR 1955 SC 216, 1955 Cri LJ 572, AIR pp. 221-22)
“31. As we have just said, the witnesses arrived at a time when the beating was already in progress. They knew nothing about what went before. We are not satisfied that Tukaram is proved to have done anything except be present, and even if it he accepted that Nilia aimed a blow at Ramchander's thigh he was so half-hearted about it that it did not even hit him; and in Pandurang's case, though armed with a lethal weapon, he did no more than inflict a comparatively light head injury. It is true they all ran away when the eyewitnesses arrived and later absconded, but there is nothing to indicate that they ran away together as a body, or that they met afterwards. Rasikabai says that the “accused” raised their axes and sticks and threatened her when she called out to them, but that again is an all-embracing statement which we are not prepared to take literally in the absence of further particulars. People do not ordinarily act in unison like a Greek chorus and, quite apart from dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say “all” even when they only saw “some” because they are too lazy, mentally, to differentiate. Unless therefore a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value. We are unable to deduce any prior arrangement to murder from these facts.
32. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor 1945 SCC OnLine PC 5, (1944-45) 72 IA 148, AIR 1945 PC 118. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor 1924 SCC OnLine PC 49, (1924-25) 52 IA 40 and Mahbub Shah v. King Emperor 1945 SCC OnLine PC 5, (1944-45) 72 IA 148, AIR 1945 PC 118. As their Lordships say in the latter case, ‘the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice’.
33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other e.g. the intention to rescue another and, if necessary, to kill those who oppose.”
22. The Constitution Bench of this Court in Mohan Singh v. State of Punjab AIR 1963 SC 174, (1963) 1 Cri LJ 100 had again reiterated the ingredients of Section 34. The Constitution Bench has also relied on and approved the Privy Council judgment in Mahbub Shah v. King Emperor 1945 SCC OnLine PC 5, (1944-45) 72 IA 148, AIR 1945 PC 118 noticing the essential constituents of vicarious liability under Section 34, Gajendragadkar, J. speaking for the Bench, laid down the following in para 13: (Mohan Singh case AIR 1963 SC 174, (1963) 1 Cri LJ 100, AIR pp. 180-81)
“13. … The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King Emperor 1945 SCC OnLine PC 5, (1944-45) 72 IA 148, AIR 1945 PC 118 common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.”
23. The principles, as noticed above, have been reiterated time and again. We may refer to the judgment of this Court in Narinder Singh v. State of Punjab (2000) 4 SCC 603, the facts in the above case have been noticed in para 5 of the judgment, which are to the following effect:
“5. On 6-11-1989 Gurdev Singh with his son Hardip Singh (PW 2) was going on a bicycle to Village Jagatpur in order to withdraw the money from his account in the Cooperative Bank there. Hardip Singh was pedalling the cycle while Gurdev Singh was sitting on its carrier. Around 12 o'clock when they reached the metalled road near the field of one Gurmej Singh, resident of Jagatpur, they saw the appellants sitting near a tree. They got up and intercepted Gurdev Singh and Hardip Singh. Both got down from their cycle. Appellant Narinder Singh proclaimed that they would teach Gurdev Singh a lesson as he had not vacated the office of Granthi of the Gurudwara as per their demand. He grabbed Gurdev Singh by his arms while the second appellant Ravinder Singh alias Khanna took out a gatra kirpan, which he was wearing and stabbed Gurdev Singh with the gatra kirpan on the left side of his neck. Gurdev Singh after receiving the kirpan-blow fell down.”
24. The role assigned was that he grabbed Gurdev Singh by his arms while the second appellant stabbed Gurdev Singh with kirpan. In para 5, the following has been stated: (Narinder Singh case (2000) 4 SCC 603)
“5. … He grabbed Gurdev Singh by his arms while the second appellant Ravinder Singh alias Khanna took out a gatra kirpan, which he was wearing and stabbed Gurdev Singh with the gatra kirpan on the left side of his neck. Gurdev Singh after receiving the kirpan-blow fell down.”
25. This Court in para 16 of the judgment held that both the appellants had committed the murder of Gurdev Singh. It was held that it is not material to bring the case under Section 34, as to who inflicted the fatal blow, the following was laid down in para 16: (Narinder Singh case (2000) 4 SCC 603)
“16. … Both the appellants committed the murder of Gurdev Singh, Granthi in furtherance of their common intention. It was submitted by Mr Gupta that Narinder Singh could not have been convicted with the aid of Section 34 as this section is nowhere mentioned in the impugned judgment. Mention of the section in the judgment is not the requirement of law to convict a person. If the ingredients of the offence are present, conviction can be made. It is not material to bring the case under Section 34 IPC as to who, in fact, inflicted the fatal blow. The High Court has rightly interfered in the matter and sentenced the appellants accordingly.”
26. To the same effect is the judgment of this Court in Raju Pandurang Mahale v. State of Maharashtra (2004) 4 SCC 371. Another judgment, which is relevant for the present case is Murari Thakur v. State of Bihar (2009) 16 SCC 256. In the above case, the main plea of the accused was that he had caught the legs of the deceased whereas the third accused cut him with his sharp-edged weapon. In para 7, the following was laid down:
“7. We agree with the view taken by the High Court Murari Thakur v. State of Bihar 2005 SCC OnLine Pat 30, (2005) 3 PLJR 46 and the trial court that the accused had committed murder of deceased Bal Krishna Mishra after overpowering him in furtherance of their common intention on 26-8-1998 at 4 p.m. No doubt it was Sunil Kumar, who is not before us, who cut the neck of the deceased but the appellants before us (Murari Thakur and Sudhir Thakur) also participated in the murder. Murari Thakur had caught the legs of the deceased and Sudhir Thakur sat on the back of the deceased at the time of commission of this murder. Hence, Section 34 IPC is clearly applicable in this case.”
27. When we look into the evidence in the present case, in light of the principles as enunciated above, it is clear that common intention of Accused 1 and 2 is fully established by the circumstances and events unfolded in the prosecution story, duly corroborated by PW 1, PW 2 and PW 4. After altercation took place between Accused 1 and the informant, the deceased, who was brother of the informant came and intervened in the matter, due to which Accused 1 and 2 immediately returned from the spot in a motorcycle and came back after 10 minutes armed with deadly weapon. When both the accused returned after altercation with two brothers, the informant and the deceased and came back after 10 minutes armed with weapon, common intention is clearly established and it cannot be said that there was no meeting of minds between Accused 1 and 2, when they returned with weapon and stabbed the deceased. Accused 2 held the neck of the deceased when Accused 1 stabbed him by knife. The manner of incident also indicates that both had common intention, hence, the High Court did not commit any error in convicting Accused 2 under Section 302 read with Section 34.
28. We, thus, do not find any merit in the appeals, the appeals are dismissed.