S.B. Sinha and R.V. Raveendran, JJ.

1. The Appellant, a lady, has been convicted for alleged commission of an offence under Section 302 read with Section 34 of the Indian Penal Code.

2. Zubedabi, the complainant had four sons, Ajmat Ali, Asgar Ali (deceased), Bafat Ali and Gullu. The complainant, alongwith her husband and two sons, namely, Bafat Ali and Gullu used to live at Murtizapur, whereas her other two sons Ajmat Ali and Asgar Ali used to live at Akola. On the fateful day, namely, on 10.6.1998, the Appellant herein, allegedly accompanied by other accused persons Manik and her brother Raju, went to the house of the complainant and inquired about the whereabouts of Gullu and upon inquiry made in that behalf as to why she had been asking so, it was told that Gullu had outraged the modesty of Chitra's (Appellant's sister) daughter Mangala. On the same day at 5.00 p.m. Asgar Ali and his wife Shahnoorbi, Bafat Ali and his in-laws reached and met Zubedabi. They told her that they had come to Asgar Ali to make peace. At about 7.00 p.m. when other persons were sitting in front of the house, Asgar Ali went to a shop for purchasing beedis. His wife followed him, who in turn, was followed by Zubedabi. As Asgar Ali crossed a short distance from home, he found the accused persons coming from the other side, whereupon he ran. He was chased by the accused persons.

3. The accused Raju and his friend Manik were said to be armed with gupti (sword stick) and dagger respectively. The Appellant herein was also present. She allegedly exhorted "maro, maro".

4. In the first information report, it was alleged :

...They caught hold of Asgar Ali in front of the house of Kantabai and Raju and Manik assaulted him and repeatedly delivered blows on his person. At that time, Vaijayantibai was shouting 'maro, maro'. When we reached there, the said three persons fled away therefrom. My son had sustained injuries and fallen down. Manik and Raju had delivered blows by means of dagger and gupti (sword stick) on his chest, stomach, back, right shoulder and left groin.

It is not disputed that Asgar Ali died because of the injures inflicted upon him.

5. It is not in dispute that during the course of their examination, the prosecution witnesses had used different words in respect of the alleged exhortation by the Appellant as would appear from the following :

'(a) Zubedabi (P.W. 1)--"Maro maro"

(b) Sk. Salim (P.W. 2)--"Maro maro, khatham karo, main dekh lungi"

(c) Kusumbhai (P.W. 5)--"Maro maro, fokanichayala khatam kara, me pahoon ghail"

(d) Noorshah (P.W. 6)--"Maro maro, fokanichayala khatam karun taka".

No other overt act is attributed to the Appellant herein. She had not caused any injury nor any weapon had been recovered from her. She was admittedly not carrying any weapon.

6. The High Court, however, found the Appellant guilty of commission of the offence mainly on four grounds :

(1) The different expressions used by the witnesses could not make much difference in arriving at a conclusion, as regards the guilt of the Appellant as they bear the same meaning. Usage of such different expressions are not of much importance stating that the witnesses were from countryside or villages and were not very mentally alter to distinguish between what they had actually witnessed and what they learnt from others with the result that discrepancies crop up in their statements, but such discrepancies did not necessarily point to their uttering deliberate falsehoods ;

(2) The Appellant, along with other accused, had also chased the deceased ;

(3) She did not take any action to prevent the other accused persons from assaulting the deceased ; and

(4) The common intention in the instant case was developed on the spur of the moment.

7. Learned Counsel appearing on behalf of the Appellant, in support of the appeal, would inter alia take us through the evidences of the prosecution witnesses and in particular to that of P.W. 2 Sk. Salim, P.W. 5 Kusum and P.W. 6 Noorshah and submitted that the statements given at their face value and taken to be correct in their entirety, would show that the Appellant reached the place of occurrence after the other accused persons. No injury is said to have been inflicted upon the deceased by the other accused persons on the basis of alleged exhortation of the Appellant. It was contended that in view of the facts and circumstances of this case, the prosecution cannot be said to have made out a case of sharing common intention on the part of the Appellant with the other accused persons.

8. Learned Counsel appearing on behalf of the State, while supporting the impugned judgment, on the other hand, contended that the very fact that the other accused persons were armed with gupti and knife and she had chased the deceased alongwith others would go a long way to show that she had the requisite common intention. Strong reliance in this behalf has been placed on Krishnan v. State of Kerala 1997 ACR 26 (SC) (NOC): (1996) 10 SCC 508 [LQ/SC/1996/1398] ; Gopi Nath v. State of U. P. 2001 (2) ACR 1712 (SC) [LQ/SC/2001/1591] : (2001) 6 SCC 620 [LQ/SC/2001/1591] and Girija Shankar v. State of U. P. 2004 (1) CCSC 300: 2004 (1) ACR 732 (SC) [LQ/SC/2004/162] : (2004) 3 SCC 793 [LQ/SC/2004/162] .

9. Section 34 of the Indian Penal Code envisages that "when a criminal act is done by several persons in furtherance of the common intention of, each of such persons is liable for that act, in the same manner as if it were done by him alone". The underlying principle behind the said provision is joint liability of persons in doing of a criminal act which must have found in the existence of common intention of enmity in the acts in committing the criminal act in furtherance thereof. The law in this behalf is no longer res integra. There need not be a positive overt act on the part of the person concerned. Even an omission on his part to do something may attract the said provision. But it is beyond any cavil of doubt that the question must be answered having regard to the fact situation obtaining in each case.

10. In Krishnan case (supra), Hansaria, J., while delivering a separate judgment observed that for the purpose of invoking Section 34 of the Indian Penal Code, the prosecution must establish that all the accused persons had shared common intention which may be inferred by reason of overt act qua each of the accused.

11. In that case, the Appellant herein was found armed with a knife and thus the said decision is distinguishable on fact.

12. In a similar situation in Gopi Nath case (supra), wherein all the accused persons not only were armed with weapons, but also had given exhortation in unison and in view of the said positive overt act, this Court held : (SCC p. 625, para 8)

8. We have carefully considered the submissions of the learned Counsel on either side. As for the challenge made to the conviction under Section 302 read with Section 34, I.P.C., it is necessary to advert to the salient principles to be kept in consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34, I.P.C., before dealing with the factual aspect of the claim made on behalf of the Appellant. Section 34, I.P.C. has been held to lay down the rule of joint responsibility for criminal acts performed by plurality of persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action--be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed on the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.
13. In Girija Shankar case (supra), this Court observed : (SCC p. 797, para 9)

9. Section 34 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 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 minds 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 the moment ; but it must necessarily be before the commission of the crime. The true concept of the section is that if 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. As observed in Ashok Kumar v. State of Punjab (1977) 1 SCC 746 [LQ/SC/1976/347] : AIR 1977 SC 109 [LQ/SC/1976/347] , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an 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.
However, in that case also as against the Appellant herein no overt act was attributed, Section 34 was held to be not applicable as regards commission of an offence under Section 394 of the Code. So far as the offence committed under Section 302, I.P.C. is concerned, in the fact situation obtaining therein the Court observed that the only reaction on the part of the Appellant therein after questioning the deceased and P.Ws. 1 and 2 was that they were notorious criminals and they should be dealt with.

14. The learned Counsel appearing on behalf of the Appellant has relied upon State of Orissa v. Arjun Das Agrawal 1999 (2) ACR 1854 (SC) [LQ/SC/1999/733] : (1999) 8 SCC 154 [LQ/SC/1999/733] , wherein the evidence against the first Respondent therein was that he was going out after the main accused came out of the house. She instigated the accused persons to kill the deceased but there was no evidence on record to show that as a result thereof more blows were hurled by the accused or any other action was taken on the basis of the said exhortation. In that situation, it was held : (SCC p. 161, para 26)

26. Regarding accused-Respondent Arjun Das Agrawal we find from the evidence on record that this accused neither went inside the house of the deceased nor took any part in the 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 the common intention of causing death of the deceased or that he actually participated in the criminal act. Therefore, the High Court rightly acquitted this accused.
15. In Hem Raj v. Raja Ram 2004 (1) CCSC 544: 2004 (2) ACR 1848 (SC) [LQ/SC/2004/96] : (2004) 9 SCC 18 [LQ/SC/2004/96] , one Hari Padam was sought to be roped in by applying Section 34, I.P.C. who is said to have shouted that the enemy had been caught and that he had to be finished. This Court held : (SCC p. 22, para 11)

11. Keeping in mind fully that this being an appeal against acquittal, this Court ought to be slow in reversing the same, we considered the evidence of the witnesses and the other relevant facts of the case. We are of the view that the prosecution successfully proved that the accused Raja Ram and Pappu alias Raj Kumar fired bullets at Mota Ram and caused his death. As regards the involvement of Hari Padam, we have serious doubts. Exhortation made to kill the deceased Mota Ram is attributed to him and that by itself is not a strong evidence to prove his complicity. He has to be given the benefit of doubt and we accordingly do so. Though a charge was framed against the accused persons under Sections 25 and 27 of the Indian Arms Act, no conviction was entered against them despite the recovery of weapons from them and the proved fact that these weapons were used for the commission of the offence. The evidence on record was not discussed in detail and no conviction was entered against them for that offence. So we do not want to express any opinion on that count.

(Emphasis supplied)

Yet again in Idrish Bhai Daudhbai v. State of Gujarat 2005 (1) CCSC 357: 2005 (1) ACR 814 (SC) [LQ/SC/2005/114 ;] : (2005) 3 SCC 277 [LQ/SC/2005/114 ;] , wherein one of us was a member, this Court, while considering a case where the Appellant therein had come out with a big stick and rushed towards the deceased and Ors. saying "beat, beat", it was held : (SCC pp. 282-83, para 18)

18. The prosecution has also failed to bring any materials on record to show that there had been any pre-concert or pre-arranged plan so as to hold that the Appellant had any common intention to commit the alleged offence. The first information report itself suggests that the accused persons became excited all of a sudden. It has also come on record that accused No. 3 Bibiben had also sustained injuries. The learned Sessions Judge himself had found that the prosecution has failed to prove her involvement in the matter. If the Appellant exhorted after infliction of injuries was completed, he by no means can be held guilty of sharing a common intention with the other accused to commit murder of the deceased or cause injuries to P.W. 3. On the other hand, if he was the first person to cause injury to the deceased by inflicting a blow on his head by a stick, it is wholly unlikely that he would imagine that accused Nos. 1 and 2 would go back to their house to bring the knives and inflict injuries to the deceased and P.W. 3 and, thus, a case of forming common intention at that time must be ruled out. It is, therefore, not a case where a common intention amongst the accused persons can be said to have been existing either from the beginning or was formed on the spur of the moment. Exhortation, furthermore, by itself is not enough to prove common intention on the part of an accused.
We may, applying the principles of law as appearing from the decisions of this Court referred to hereinabove, note that in the instant case the expressions alleged to have been used by the Appellant herein, according to different witnesses, were different. It may be true, as contended by learned Counsel for the State, that the question as to whether the Appellant had shared a common intention with the other persons must be deciphered from the fact that the other accused persons were armed with gupti and dagger and the deceased was chased, but while arriving at such a conclusion, we have no other option but to take into consideration the actual role played by the Appellant and also the facts and circumstances in which dispute arose viz. Gullu s/o P.W. 1 has allegedly outraged the modesty of one Mangala who happened to be the daughter of her sister. Presumably she was enraged. But it is difficult for us to perceive that only therefore she would join the other accused persons in forming common intention to kill the deceased Asgar Ali, particularly, when she had knowledge that it was not Asgar Ali but Gullu who had outraged the modesty of her sister's daughter. No evidence has been brought on record by the prosecution to show that the accused persons met prior to the date of occurrence for the purpose of commission of the said offence. It is true that common intention can be formed even on the spot but for the said purpose, as indicated hereinbefore, it is essential to consider the role played by the accused. We may notice that P.W. 2 Sk. Salim, in his evidence stated :

...When he reached near the house of Kantabai, that time, accused Nos. 1 and 2 caught hold of him, and they started to beat him. They assaulted him by gupti and knife. Accused No. 3 Vaijayantibai also reached there. I saw accused No. 3 instigating accused Nos. 1 and 2 to assault the deceased saying that, 'maro maro, khatam karo main dekh lungi'.
It is, therefore, possible to arrive at a conclusion on the basis of the said evidence that the Appellant herein reached after the other accused persons reached the spot and had been assaulting the deceased by gupti and knife. Yet again P.W. 5 Kusum had stated :

...It did not happen that when I was going by the road, I heard shouts as bachao, bachao, therefore, I went to the spot. On 27.7.1998, I was taken by the police before J.M.F.C., Murtizapur. There my statement was recorded by the Magistrate. While giving my statement before the Magistrate, Murtizapur, I did not tell that I heard shouts, as 'wachawa (save), wachawa (save)', and therefore, I stopped near water pump beside house of Kantabai.
The said witness therefore, could not state as to how and in what manner the Appellant gave exhortation.

16. The High Court, therefore, in our opinion, was not correct in arriving at a finding that the Appellant had shared the common intention with other accused for commission of the crime because she not only gave a exhortation and chased the deceased but also did not do anything to prevent the other accused persons from committing the crime. The last reasoning of the High Court, in our opinion, was misconceived. The High Court arrived at the conclusion that the Appellant chased the accused for some time which would lead to an inference that the accused might not have chased the deceased all the way. The High Court was furthermore not correct in arriving at a finding that a case has been made out that common intention was developed on the spur of the moment. Apart from the fact that no such case had been made out by the prosecution at the trial stage, the fact situation obtaining herein also does not lead to such inference.

17. The victim was the Appellant's sister's daughter. She may have become enraged because her modesty was outraged. But it is difficult to arrive at a conclusion that she would be a party to the murder. Had she shared the common intention, she could have armed herself with a weapon and she would have played a more active role than what had been attributed to her by the prosecution.

18. In view of our findings abovementioned, we are of the opinion that the impugned judgments cannot be sustained which are set aside accordingly. The appeal is allowed. The Appellant is directed to be released from custody forthwith unless wanted in any other case.