Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. Hukamchand (PW-12) also categorically stated that the pieces of wood collected by tlfe deceased and PW-11 were taken away by the accused and they had followed them.
12. It is, therefore, evident that there had been a quarrel. There was no pre-meditation between Prabhudayal and the appellant herein. Altercations had taken place. Injury caused upon the deceased by Prabhudayal, therefore, in our opinion, was an individual act. Similarly, causing of injury upon the C prosecution witnesses by the appellant was his individual act. While embarking upon ihe question as to whether any intention had been shared by the appellant with the said Prabhudayal or not, the backdrop in which the incident had taken place, in our opinion, should be taken into consideration.
13. A common intention may be developed on the spot, but the same D must not only be developed but also must be shared with the other accused.
14. Concededly, the occurrence took place all of a sudden. The act of theft on the patt of the accused persons was complete. They had been taking away the wood. They were followed by the deceased and PW-11. They must have been obstructed from taking away the wood by them as the same were E in their possession. It was at that juncture the deceased was said to have been assaulted by Prabhudayal and Ohan Singh. In a situation of this nature where the accused persons had acted at the spur of the moment having regard to the altercations which had preceded the incident, in our opinion, it is difficult to lead to :he conclusion that Prabhudayal and the appellant had developed a common intention of causing death of the deceased. If the F statements of the prosecution witnesses PWs 2, 11 and 12 are to be believed, they acted almost at the same time. We may notice that the third accused Ohan Singh has been acquitted. The State has not preferred any appeal thereagainst. The High Court has also convicted Prabhudayal under Section 302 of the Indian Penal Code holding that the same was his individual act. G In this situation, we are of the opinion that it is difficult to uphold the contention of Ms. Makhija that the appellant is guilty under Section 302/34 of the Indian Penal Code.
15. In Noor@ Noordhin v. State of Karnataka, (2007) 8 SCALE 665, A this Court held as under: c "13. A common intention may be developed on the spot. Although a person may not be held guilty for having a common object, in a given situation, he may be held guilty for having a common intention, but such common intention must be shared with others … " It was also observed: "16. We have noticed hereinbefore that all the accused, other than the appellant, have been acquitted by the learned Trial Judge. The State did not prefer any appeal thereagainst. The prosecution, therefore, cannot say that the appellant had any common intention with any other accused persons who were named in the First Information Report. The matter might be different where a person is said to have formed common intention with other persons. The prosecution may succeed in obtaining a conviction against the appellant for commission of an offence under Section 34 of the Indian Penal Code ifthe names of the other accused persons and the roles played by them are known. Specific overt act of the accused is not only known but is proved. In this case the first information report was against known persons … "
16. In Lala Ram v. State of Rajasthan, (2007) 8 SCALE 621, this Court observed: "7. Section 34 has been enacted on the princip'le 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 one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 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 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 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 Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the -4, 'I' -1 _._ JAGANNATHv. STATE [SINHA,J.] commission of the crime. The true contents of the Section are that if A two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself … "IO.
The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a B 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 Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the C 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 exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, AIR (1993) SC 1899, Section 34 D is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused."
17. Dr. J.P. Nayak (PW-5) examined Hukamchand and found abrasion on his body and a contusion 2 x 1/4" in the left side of chest and just above E the left nipple and along with a contusion 2 x 1/2" was also found. One abrasion l 1/4" was found in the middle part of the chest and blood was clotted on it.
18. Dr. V.K. Srivastava (PW-8) examined Naval Singh and found like a half moon size wound 1/2" x 1/2" on his body on the left side of his head F which was deep to the above of the bone. According to Dr. Srivastava, this injury was caused by a hard and blunt weapon.
19. Dr. Srivastava also examined Dhoomsingh and found the following injuries on his person: "(I) A incised would 3 x 1/6" x 1/6" in a carve size on the back side of the chest. (2) Incised wound on the wrist of the left hand 113" x 113" x 113". (3) Contused injury on the wrist of left hand 1/4" x 1/4". According to Dr. Srivastava, these injuries were simple in nature.
20. Injuries caused to Naval Singh and Hukamchand were also simple in nature. In view of the nature of injuries caused by the appellant, he cannot be held to be guilty of commission of an offence under Section 302/34 of the Indian Penal Code. We, therefore, are of the considered view that the appellant B is guilty of commission of an offence under Section 326 of the Indian Penal Code and not under Section 302/34 thereof.
21. Keeping in view of the facts and circumstances of this case, we are of the opinion that imposition ofa sentence of 10 years Rigorous Imprisonment C under the aforementioned provision shall meet the ends of justice. The Appeal is allowed in part and to the extent mentioned hereinbefore. N.J. Appeal partly allowed.