CHHOTA AHIRWAR versus THE STATE OF MADHYA PRADESH

Citation: [2020] 3 S.C.R. 776 · Decided: 06-02-2020 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 3 S.C.R.
[2020] 3 S.C.R. 776
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CHHOTA AHIRWAR
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal No. 238 of 2011)
FEBRUARY 06, 2020
[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]
Penal Code, 1860: ss.307/34 – Attempt to murder with
common intent – Applicability of s.34 – Prosecution case was that
PW-3-complainant, the accused appellant and the main accused
were related to each other – There was previous enmity between
them over land dispute – On the fateful day, when PW-3 was on his
way, he was stopped by accused appellant and told not to cultivate
his land – Quarrel started between PW-3 and accused appellant –
The main accused also came and intervened, whereupon PW-3 told
him, not to interfere and to go home, as he was in no way concerned
with the dispute – Thereafter, the main accused took out a pistol
from the right pocket of his pants and pointed it at him – PW-3 told
the main accused not to open fire, whereupon the accused appellant
urged the main accused to kill PW-3 – Thereafter, the main accused
fired the pistol, causing injury to PW-3 with the splinters – Trial
court convicted the accused appellant under ss. 307/34 and main
accused under s.307 – High Court upheld the same – On appeal,
held: To attract s.34, no overt act is needed on the part of the accused
if they share common intention with others in respect of the ultimate
criminal act, which may be done by any one of the accused sharing
such intention – Common intention implies acting in concert –
Existence of a prearranged plan has to be proved either from the
conduct of the accused, or from circumstances or from any
incriminating facts – Prosecution was not able to establish a pre-
arranged common intention between the accused appellant and the
main accused to kill PW-3 in pursuance of which the main accused
open fired from his pistol – The circumstances established suggested
that intervention by the main accused was by chance – There were
some notable discrepancies between the evidence of PW-3 and
PW-4 which raised serious doubts with regard to the truth and/or
accuracy of their evidence particularly in view of the enmity and
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pre-existing family disputes between the parties – Prosecution
miserably failed to establish any common, premeditated or
prearranged intention jointly of the accused appellant and the main
accused to kill PW-3, on the spot or otherwise – Prosecution also
failed to prove that the pistol was fired at the exhortation of the
accused appellant – Trial court and High Court both fell in error in
convicting the accused appellant – Accused appellant entitled to
acquittal.
Penal Code, 1860: s.34 – Common intention – It is a settled
principle of criminal law that only the person who actually commits
the offence can be held guilty and sentenced in accordance with
law – However, s.34 lays down a principle of joint liability in a
criminal act, the essence of which is to be found in the existence of
common intention, instigating the main accused to do the criminal
act, in furtherance of such intention – Even when separate acts are
done by two or more persons in furtherance of a common intention,
each person is liable for the result of all the acts as if all the acts
had been done by all of these persons.
Allowing the appeal, the Court
Held: 1.  It is not in dispute that the accused appellant
neither carried arms nor opened fire. In cross-examination
PW-3 admitted that he had not in his statement to the police under
Section 161, Cr.PC stated anything about any instigation by the
accused appellant to the main accused. The Sessions Court
overlooked certain serious discrepancies between the evidence
of PW-4 and the evidence of PW-3 with regard to the alleged role
of the accused appellant. While PW-3, himself the injured witness,
deposed that the accused appellant exhorted the main accused
to kill him, after the main accused had pointed the pistol at PW-3,
PW-4 had deposed that on being told by the accused appellant to
beat PW-3, the main accused took out the pistol from the right
pocket of his pant and fired. [Paras 16, 17][784 A-F]
2.1 It is a settled principle of criminal law that only the
person who actually commits the offence can be held guilty and
sentenced in accordance with law. However, Section 34 lays down
a principle of joint liability in a criminal act, the essence of which
CHHOTA AHIRWAR v. THE STATE OF MADHYA PRADESH
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SUPREME COURT REPORTS
[2020] 3 S.C.

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