DAYA SHANKAR versus STATE OF M.P.

Citation: [2009] 1 S.C.R. 386 · Decided: 20-01-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 1 S.C.R. 386 
A 
DAYA SHANKAR 
II. 
STATE OF M.P. 
(Criminal Appeal No. 105 of 2009) 
B 
JANUARY 20, 2009 
, 
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANGUL Y, JJ.] 
Penal Code, 1860: 
c 
s.302 rlw s.34 - Conviction under- Applicability of s.34 
challenged - Held: No overl act attributed to appellant - Mere 
fact that he was in company of accused who were armed not 
sufficient to attract s.34 - Appellant was not armed and had 
no animosity with deceased - Stand that he pulled the legs 
._ 
D of deceased was not established - Appellant not guilty by 
~ 
application of s.34. 
s.34 - Common intention - Nature and applicability of. 
E 
Prosecution case was that the deceased had eloped 
with the sister of A-2 and performed marriage _with her. 
They started living in some other village and ret~ned to 
his village a month before the incident. On the fateful day, 
when deceased went to the fields to answer to call of 
'> 
F nature, A-2 armed with sword, A-3 armed with axe along 
with A-1 (appellant) and A-4 reached there. Appellant and 
A-4 pulled the legs of deceased and threw him on the 
ground. Deceased fell on the crops in the field. A-2 
assaulted the deceased by sword on the chest and then 
G placed his sword on the chest of the deceased. On 
account of beatings, the deceased died. The Trial Court 
convicted the accused persons under s.302 r. w. s.34 IPC. 
~ ... _ 
• 
Before the High Court, the basic stand was that the 
prosecution failed to prove common intention on the part 
H 
386 
DAYA SHANKAR v. STATE OF M.P. 
387 
• 
of the appellant and therefore, s.34 IPC had no A 
application; and that merely because the appellant had 
"' 
accompanied other accused persons, that was not 
" 
sufficient to warrant presumption of common intention. 
... 
Allowing the appeal, the Court 
B 
HELD: 1.1. s.34 IPC has been enacted on the principle 
... 
of joint liability in the doing of a criminal act. The section 
is only a rule of evidence and does not create a 
substantive offence. The distinctive feature of the section 
is the element of participation in action. The liability of c 
one person for an offence committed by another in the 
course of criminal act perpetrated by several persons 
arises under s.34 if such criminal act is done in 
--
furtherance of a common intention of the persons who 
~ 
join in committing the crime. Direct proof of common 
D 
intention is seldom available and, therefore, such 
intention can only be inferred from the circumstances 
appearing from the proved facts of the case and the 
proved circumstances. In order to bring home the charge 
of common intention, the prosecution has to establish by 
E 
evidence, whether direct or circumstantial, that there was 
plan or meeting of mind of all the accused persons to 
commit the offence for which they are charged with the 
~ 
aid of s.34, be it pre-arranged or on the spur of moment; 
but it must necessarily be before the commission of the 
F 
crime. The true contents of the Section are that if two or 
more persons interitionally do an act jointly, the position 
in law is just the;same as if each of them has done it 
individually by himself. It is not necessary that the acts 
=ct 
of the several persons charged with commission of an 
G 
offence jointly must be the same or identically similar. 
.. " 
The acts may be different in character, but must have been 
actuated by one and the same common intention in order 
to attract the provision. [Para 7) [391-8-G] 
Ashok Kumar v. State of Punjab AIR 1977 SC 109, relied 
H 
388 
SUPREME COURT REPORTS 
[2009] 1 S.C.R. 
A on. 
1.2. The section does not say "the common intention 
of all", nor does it say "and intention common to all". 
,_ 
Under the provisions of s.34 the essence of the liability 
B 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. As a result of the 
application of principles enunciated in s.34, when an 
accused is convicted under s.302 read with s.34, in law 
c it means that the accused is liable for the act which 
caused death of the deceased in the same manner as if 
it was done by him alone. The provision is intended to 
meet a case in which it may be difficult to distinguish 
between acts of individual members of a party who act 
in furtherance of the common intention of all or to prove -
D exactly what part was taken by each of them. For 
"' 
applying s.34 it is not necessary to show some over

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