DHANESHWAR MAHAKUD AND ORS. versus STATE OF ORISSA

Citation: [2006] 3 S.C.R. 849 · Decided: 05-04-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

DHANESHWAR MAHAKUD AND ORS. 
A 
v. 
STATE OF ORISSA 
APRIL 5, 2006 
[S.B. SINHA AND P.P. NAOLEKAR, JJ.] 
B 
Penal Code 1860: 
Sections 302 rlw 1491 302 rlw34-Charges framed against six accused 
for offences under Sections 302 r/w 149-High Court acquitted two accused C 
while Conviction of remaining four accused under 302 maintained with the 
aid of Section 34-Challenge as to-Held, if the offence has been committed 
in fi1rtherance of common intention then each and every accused propagating 
common intention can be convicted under section 302 read with 34 lPC. 
Appellants alongwith two other persons were tried for offences 
punishable under sections 148,302/149 and 33/149 of the Indian Penal Code, 
1860. One of the accused pleaded right of self defence of person and property 
and another accused set up the defence of alibi. The trial court, relying on 
D 
the evidences, convicted all the accused. In the appeal the High Court did not 
found the appellant guilty of offence under sections 148 and 149 IPC but E 
upheld the conviction of appellants under sections 302 and 323 IPC, acquitting 
two of accused at the same time. 
On behalf of the appellant it was contended that the High Court having 
rightly found that the accused appellant could not be convicted under Section 
302 read with section 149 IPC, has erred in convicting the appellants under F 
section 302 IPC on basis of evidence led by the prosecution as the evidence 
on record does not prove the factum of death being caused by each and every 
appellant by their individual separate acts. 
It was contended by the state that although the High Court has not found G 
the appellants guilty under section 149 IPC, in the facts proved by the 
prosecution, the conviction imposed on them under section 302 IPC could very 
well be supported with the aid of section 34 IPC as there was common intention 
of all the accused-appellants to cause death of the deceased with the use of 
deadly weapons and the assault was made on them with the common intention 
849 
I-I 
850 
Sl'PRFME COURT REPORTS 
[2006J 3 S.C.R 
A which was formed at the place of incident as is clearly revealed from the 
evidence of eyewitnesses examined by the prosecution and well supported by 
the medical evidence. 
Dismissing the appeals the court 
B 
HELD I. I. To convict the accused of an independent charge under section 
302 IPC, it is necessary that the court should reach the conclusion that the 
injuries inflicted by each individual, taken in isolation, were sufficient in 
ordinary course of nature to cause death of the deceased persons. If the court 
reaches the conclusion on the basis of the material placed before it that the 
C injuries were sufficient in the ordinary course of nature to cause death and 
the nature of injuries was homicidal, the court can convict every accused under 
section 302 IPC, but if the court cannot conclusively reach the finding that 
each and every individual involved in commission of the offence has caused 
such injuries which are sufficient in the ordinary course of nature to cause 
death, the accused cannot be convicted under section 302 IPC. If the injuries 
D caused are sufficient in the ordinary course of nature and they have been 
caused in furtherance of the common intention, then each and every individual 
propagating the common intention can be convicted under section 302 read 
with section 34 IPC although he has not been charged under section 34 IPC 
and has been charged under section 149 IPC alongwith section 302 IPC. 
E 
F 
1854-C-EI 
Mulhu Yaduv and Ors. v. State ofBihur, 1200215SCC724; Chittarmal 
v. State of Rujasthun, AIR (2003) SC 796; Luchhman Singh und Ors. v. The 
State, .\IR (1952) SC 167; Kamai! Singh and Anr. v. State of Punjab, AIR 
119541 SCC 204; Hamlet a'• Sasi & Ors. v. State of Kera/a, 12003110 SCC 
108; Gurprec1 Singh v. Stute of Punjab, 12005112 SCC 615 and Ramji Singh 
and Anr. v. Stull! uf Bihur, 12001 J 9 SCC 528, relied upon. 
1.2. There is no bar in conviction of the accused with the aid of section 
34 IPC in place of Section 149 IPC ifthere is evidence on record to show that 
such accused shared a common intention to commit the crime and no apparent 
G injustice or prejudice is shown to have been caused by application of section 
34 IPC in place of section 149 IPC.1858-BJ 
H 
2.1. In the facts and circumstances of the case, from the evidences of 
the witnesses duly supported by the medical evidence, it appears that the 
accused shared common 

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