STATE OF ORISSA versus ARJUN DAS AGRAWAL AND ANR.

Citation: [1999] SUPP. 1 S.C.R. 442 · Decided: 13-08-1999 · Supreme Court of India · Bench: G.T. NANAVATI, S.N. PHUKAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
STATE OF ORISSA 
v. 
ARJUN DAS AGRAWAL AND ANR. 
AUGUST 13, 1999 
B 
[G.T. NANAVATI ANDS.~. PHUKAN, JJ.] 
Criminal Law 
Penal Code, 1860-Section 34-Common intention-Accused 'A ' & 
C 'M' among others convicted by trial court-Acquittal by High Court-
Participation by 'M' proved by eye witnesses-Held, acquittal by High Court 
erroneous. 
Common intention-No evidence regarding participation of 'A '-Only 
evidence of instigation-Held, no inference can be drawn that he had common 
D intention of causing death of the deceased-Acquittal by High Court upheld 
Respondents along with 14 others were tried inter-alia for the offence 
of murder of one D. Sessions Court convicted the respondents among others 
under Section 302 read with Section 149 IPC. On appeal High Court acquitted 
E the Respondents while convicting the others. The High Court held that the 
conviction of respondents was not sustainable as the evidence of Prosecution 
is not corroborated by medical evidence, as against them. 
In appeal to this Court the State relying on the evidence of PWsl to 
4 sought for the conviction of appellants. PWl wife of the deceased made a 
F specific statement that accused pushed her back when she tried to approach 
one 'D' who was assaulting her deceased husband. According to her, accused 
instigated other accused to kill the deceased. The deposition of PWl was 
corroborated by PWs 2-4. The respondents defended the appeal by pointing 
out the contradictions in the evidence. 
G 
Allowing the appeal partly, the Court 
H 
HELD : 1. It is found from the evidence on record as extracted above 
that accused 'M' went to the house of the deceased along with other accused 
persons where accused 'D' gave knife blows to the deceased. It is also found 
that the accused-respondent 'M' also prevented PWl, wife of the deceased 
442 
STA TE OF ORIS SA v. A.O. AGRA WAL 
443 
for rescuing her husband as she was pushed by accused-respondent 'M' and A 
she fell down. From the evidence of PW2, it is found that the accused-
respondent 'M' caught hold of tuft of beard of the deceased. The evidence on 
record is sufficient to conclude that in the criminal act namely giving fatal 
blows to the deceased accused-respondent 'M' actively participated in the 
said criminal act in furtherance of the common object, namely to cause death B 
of the deceased. The High Court erred in allowing the appeal of accused 'M'. 
'M' is convicted under Sec.263/34 IPC and sentenced to undergo RI for life. 
[450-C-D-E-F) 
2. From the evidence on record it is found that accused-respondent 'A' 
never went inside the house of the deceased nor took any part in the C 
commission of the murder. He only instigated by shouting at the other 
accused persons. There is nothing in evidence to show that due to his 
instigation more blows were given by the accused persons. Therefore, no 
inference can be drawn that this accused-respondent had common intention 
of causing death of the deceased or that he actually participated in the 
criminal act. The acquittal of this accused by High Court is upheld. 
D 
[450-G-H; 451-AJ 
3. It is a settled position of law that Section 34 IPC does not create a 
distinct offence and it is the participation of the accused that the intention 
of committing crime is established and Section 34 IPC is attracted. To rope 
in a person with the aid of Section 34 IPC, prose.:ution has to prove that the E 
criminal act was done by actual participation of more than one person' and 
that the said act was done in furtherance of common intention of all engaged 
at a prior concert. f 450-BJ 
Mahabir Gope v. State of Bihar, (1963) 3 SCR 331; Jagir Singh v. State 
of Punjab, (19671 3 SCR 256 and Bharwad Mepa Dana & Anr. v. State of F 
Bombay, [1960) 2SCR 172, referred to. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 5 
of 1993. 
From the Judgment and Order dated 27.J .87 of the Orissa High Court G 
in Crl. A. Nos. 72 and 73 of 1983. 
Raj Kumar Mehta for the Appellant. 
U.R. Lalit, Ajay Bhalla and P.K. Jain for Respondent No. I. 
T. N. Singh, (A.C.) for Respondent No. 2. 
H 
444 
SUPREME COURT REPORTS [1999) SUPP. I S.C.R. 
A 
The Judgment of the Court was delivered by 
PHUKAN, J. Sixteen persons were booked for trial under Sections 302/ 
149, 302/34, 341/149, 449, 451/34, 427/34 and 323 Indian Penal Code for causing 
death of deceased Bhagirathi Panda. The Sessions Judge, Koraput in Sessions 
Case No. 134/85 by judgment dated 2nd April, 1986 after appreciation of th

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