10. The entire prosecution case rests on the sole testimony of PW1 – eyewitness to the incident. PW1 is the wife of the deceased. She has categorically stated in her deposition that the incident occurred in the house of the respondent – original accused No.3. She has specifically stated that original accused No.1 – husband of the respondent caused four injuries on the head of the deceased. She has also stated that the respondent caught hold of the deceased. She has also stated that thereafter the respondent – original accused No.3 dragged the dead body of the deceased and thrown it on the gate of her house. It is the case on behalf of the accused that PW1 was not present at the time when the original accused No.1 caused injuries on the deceased. According to the learned counsel appearing on behalf of the respondent, PW1 came subsequently and at that time she had seen the respondent having caught hold of the deceased. The aforesaid has no substance. The deposition of the eyewitness is required to be considered as a whole and it cannot be in a particular part or sequence. On considering the deposition of PW1 as a whole, the presence of the respondent at the place of the occurrence has been established. The prosecution has also established that the respondent caught hold of the deceased. In her section 313 statement, the respondent – original accused No.3 has not explained why she caught hold of the deceased. Thus, the participation in action of the respondent has been established and proved. If the respondent would not have caught hold of the deceased, in that case the original accused No.1 might not have been able to cause injuries on the head of the deceased. Thus, it can be seen that the respondent participated actively in commission of the offence and shared the common intention to kill the deceased.
11. In the case of Gurbachan Singh (supra), it is observed and held as under:
“12. Given the aforesaid position, we are of the view that Section 34 of the IPC i.e., common intention, is clearly attracted in the case of Gurbachan Singh, whose case cannot be distinguished, so as to exclude him as one who did not share common intention with Darshan Singh, Balvir Singh, and Manjit Singh. Section 34 of the IPC makes a coperpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention.”
12. Now so far as the decisions relying upon on behalf of the respondent in the cases of Mukesh (supra) and Ramashish Yadav (supra) are concerned, on facts and in light of the deposition of PW1 – eyewitness and that she has specifically stated that the respondent caught hold of the deceased, the said decisions shall not be of any assistance to the respondent.
13. In the present case, the participation in action of the respondent in commission of the offence and the common intention to commit the murder of the deceased with original accused No.1 – husband of the respondent have been established and proved by the prosecution. Therefore, the High Court has committed a very serious error in acquitting the respondent for the offences punishable under section 302 with the aid of section 34 of the IPC.
14. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order dated 24.09.2019 passed by the High Court of Madhya Pradesh, Bench at Indore in Criminal Appeal No. 1244/2011, acquitting the respondent herein – original accused No.3 for the offences punishable under section 302 with the aid of section 34 of the IPC is hereby quashed and set aside and the judgment and order dated 24.08.2011 passed by the learned trial Court in Sessions Trial No. 204/2010, convicting the respondent herein – original accused No.3 for the offences punishable under section 302 with the aid of section 34 of the IPC is hereby restored. As we have quashed and set aside the impugned judgment and order passed by the High Court acquitting the respondent herein, respondent – Jad Bai is directed to surrender before the concerned Jail authorities within a period of six weeks from today to undergo the remaining sentence as per the judgment and order passed by the learned trial Court, failing which she may be taken into custody on the expiry of six weeks’ time to serve out the remaining sentence.
Party
The State Of Madhya Pradesh Vs. Jad Bai – Criminal Appeal No. 586 Of 2023 (Arising From SLP (Criminal) No.8692/2022) – February 24, 2023.
The State of M.P vs. Jad Bai 7194_2022_4_1504_42249_Judgement_24-Feb-2023
