Supreme Court acquits accused in attempted murder case due to lack of common intention: Chhota Ahirwar vs. State of Madhya Pradesh (6 February 2020)

Date of the Judgment: 6 February 2020
Citation: [Not Available in Source]
Judges: Indira Banerjee, J., S. Ravindra Bhat, J.
Can a person be convicted of attempted murder if they did not directly commit the act but allegedly instigated it? The Supreme Court addressed this question in the case of Chhota Ahirwar vs. The State of Madhya Pradesh. The court examined whether the accused shared a common intention with the main perpetrator to commit the crime. This judgment, delivered by a bench of Justices Indira Banerjee and S. Ravindra Bhat, clarifies the application of Section 34 of the Indian Penal Code, 1860, which deals with acts done by several persons in furtherance of a common intention.

Case Background

On 22nd October 1992, a dispute arose between the accused, Chhota Ahirwar, and the complainant regarding land cultivation. Khilai, the main accused, intervened in the quarrel. Khilai then took out a country-made pistol and fired at the complainant, injuring him. The prosecution alleged that Chhota Ahirwar instigated Khilai to shoot the complainant. The incident was reported at the Mohandra Chowki, and a case was registered at the Simariya Police Station.

Timeline:

Course of Proceedings

The Additional Sessions Judge, District Panna, convicted Chhota Ahirwar under Section 307 read with Section 34 of the Indian Penal Code, 1860, and the main accused, Khilai, under Section 307 of the Indian Penal Code, 1860. Chhota Ahirwar appealed to the High Court of Madhya Pradesh, which dismissed his appeal and upheld the conviction. Subsequently, Chhota Ahirwar appealed to the Supreme Court.

Legal Framework

The case revolves around Section 307 of the Indian Penal Code, 1860, which deals with the attempt to murder, and Section 34 of the Indian Penal Code, 1860, which addresses acts done by several persons in furtherance of a common intention.

Section 34 of the Indian Penal Code, 1860:

“When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

Arguments

The prosecution argued that Chhota Ahirwar instigated Khilai to shoot the complainant, thus making him liable under Section 307 read with Section 34 of the Indian Penal Code, 1860. They contended that there was a common intention between Chhota Ahirwar and Khilai to harm the complainant.

The defense argued that there was no pre-arranged plan or common intention between Chhota Ahirwar and Khilai to kill the complainant. They submitted that Khilai acted on the spur of the moment and that Chhota Ahirwar’s alleged instigation was not sufficient to establish a common intention.

Issues Framed by the Supreme Court

The Supreme Court considered the following issue:

1. Whether the accused appellant could have been held guilty of offence under Section 307 of the Indian Penal Code, 1860 by invocation of Section 34 of the Indian Penal Code, 1860.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The court considered the following authorities:

• B.N. Srikantiah vs. Siddiah AIR 1958 SC 672, Supreme Court of India: The Court held that Section 34 of the Indian Penal Code, 1860 is a rule of evidence and does not create a distinct substantive offence.
• Bharwad Mepa Dana and Anr. Vs. State of Bombay AIR 1960 SC 289, Supreme Court of India: The Court reiterated that Section 34 of the Indian Penal Code, 1860 is a rule of evidence and does not create any distinct, substantive offence.
• Harbans Kaur and Another vs. State of Haryana (2005) 9 SCC 195, Supreme Court of India: The Court emphasized that the distinctive feature of Section 34 of the Indian Penal Code, 1860 is the element of participation in action.
• Manik Das & Ors. vs. State of Assam AIR 2007 SC 2274, Supreme Court of India: The Court held that common intention can only be inferred from proved facts and circumstances.
• Abdul Mannan vs. State of Assam (2010) 3 SCC 381, Supreme Court of India: The Court stated that common intention can develop during the course of an occurrence.
• Lallan Rai & Ors. vs. State of Bihar (2003) 1 SCC 268, Supreme Court of India: The Court held that the essence of liability under Section 34 of the Indian Penal Code, 1860 is the simultaneous consensus of the minds of persons participating in the criminal act.
• Ashok Basho (2010) SCC 660, Supreme Court of India: The Court held that to attract Section 34 of the Indian Penal Code, 1860, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act.
• Barendra Kumar Ghosh AIR 1925 Privy Council 1, Privy Council: The Privy Council stated that “they also serve who stand and wait” in the context of common intention.

Authorities: How They Were Considered

Judgment

The Supreme Court allowed the appeal and set aside the conviction of Chhota Ahirwar. The court held that the prosecution failed to establish a pre-arranged common intention between Chhota Ahirwar and Khilai to kill the complainant. The court observed that Khilai’s act of firing the pistol appeared to be on the spur of the moment, and the alleged instigation by Chhota Ahirwar was not sufficient to prove a common intention.

How each authority was viewed by the Court?

• The court relied on B.N. Srikantiah vs. Siddiah [AIR 1958 SC 672]* and Bharwad Mepa Dana and Anr. Vs. State of Bombay [AIR 1960 SC 289]* to reiterate that Section 34 of the Indian Penal Code, 1860 is a rule of evidence and not a substantive offense.
• The court used Harbans Kaur and Another vs. State of Haryana [(2005) 9 SCC 195]* to highlight that participation in action is a distinctive feature of Section 34 of the Indian Penal Code, 1860.
• The court cited Manik Das & Ors. vs. State of Assam [AIR 2007 SC 2274]* to emphasize that common intention must be inferred from proved facts and circumstances.
• The court cited Abdul Mannan vs. State of Assam [(2010) 3 SCC 381]* to highlight that common intention can develop during the course of an occurrence.
• The court referred to Lallan Rai & Ors. vs. State of Bihar [(2003) 1 SCC 268]* to emphasize the need for a simultaneous consensus of minds for Section 34 of the Indian Penal Code, 1860.
• The court referred to Ashok Basho [(2010) SCC 660]* to highlight that no overt act is needed if there is common intention.
• The court quoted Barendra Kumar Ghosh [AIR 1925 Privy Council 1]* to illustrate the concept of common intention.

What weighed in the mind of the Court?

The Supreme Court focused on the lack of evidence for a pre-arranged plan or common intention between the accused and the main perpetrator. The court noted inconsistencies in the testimonies of witnesses and emphasized that the main perpetrator’s actions appeared to be spontaneous. The court also highlighted that mere presence or a spur-of-the-moment instigation is not enough to establish common intention under Section 34 of the Indian Penal Code, 1860.

Fact:Law The ratio of fact to law is 60:40, indicating that the court primarily focused on factual analysis to determine the absence of common intention.

The court’s reasoning was based on the following points:

• “There is no evidence to establish any pre-arrangement to converge at the place of occurrence.”
• “Even if it is accepted that the accused appellant uttered the words attributed to him by the complainant (PW-3) in his evidence, this seems to have been done on the spur of the moment.”
• “The Prosecution has also failed to prove that the pistol was fired at the exhortation of the accused appellant.”

Key Takeaways

• To establish liability under Section 34 of the Indian Penal Code, 1860, a pre-arranged common intention must be proven.
• Mere presence at the scene of a crime or a spur-of-the-moment instigation is not sufficient to establish common intention.
• The prosecution must prove that the accused shared a premeditated intention to commit the crime.

Directions

The Supreme Court directed that the accused appellant be set free forthwith. The Court clarified that the merits of the conviction of the main accused Khilai were not considered in this judgment and that his appeal, if any, should be decided on its own merits.

Development of Law

The ratio decidendi of the case is that for Section 34 of the Indian Penal Code, 1860 to apply, there must be a pre-arranged plan and common intention between the accused persons. The judgment clarifies that a spur-of-the-moment instigation is not enough to establish common intention, thus reinforcing the existing position of law.

Conclusion

The Supreme Court’s judgment in Chhota Ahirwar vs. The State of Madhya Pradesh highlights the importance of proving a pre-arranged common intention to establish joint criminal liability under Section 34 of the Indian Penal Code, 1860. The court acquitted the accused, emphasizing that the prosecution failed to demonstrate a prior agreement or plan to commit the crime. This case serves as a reminder that mere presence or spur-of-the-moment actions are not sufficient to establish a common intention.