December 15, 2023 In Uncategorized


A two-Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Pankaj Mithal passed a Judgment dated 13-12-2023 in the matter of Maheshwari Yadav & Anr. Vs.  The State of Bihar, Criminal Appeal No. 1515 / 2011 and observed that Section 34 of the Indian Penal Code 1860 (IPC) introduced vicarious liability, which can be applied on the co-Accused, even when the main Accused acted alone and is not convicted under Section 34 IPC, but only under Section 302 IPC. Further, the witnesses’ failure to intervene and prevent the unfortunate incident would not necessarily cast doubt on their testimony, when all of them provided a consistent account of the events upon thorough examination.


1) That the aforesaid Appeal was filed before the Apex Court by one, Maheshwari Yadav (Appellant / Accused No.1) and one, Mannu Yadav (Appellant / Accused No. 2) against the State of Bihar (Respondent), who challenged the decision of the Hon’ble High Court of Patna (High Court) which dismissed the Appeal by impugned Judgment and Order dated 07.10.2005.

2) One, Jagdish Manjhi (PW4) is the First Informant. The incident occurred on 10.03.1997, when PW4 visited Village Shrirampur to participate in a Baraat. Thereafter, around noon, he went to Village Chhitmakhanpur to meet his maternal nephew Gholti Yadav (Deceased). After that, PW4, along with his cousin Narayan Manjhi (PW5) and Gholti Yadav (Deceased), proceeded to catch a train. Thereafter, they crossed the railway line, and as they moved further, they encountered the Appellant No.1, Maheshwari Yadav, standing there with a lathi (stick) in his hand. On seeing the Appellant No.1, the Deceased warned PW4 not to talk to the Appellant No.1. Meanwhile, the Appellant No.2, Mannu Yadav, and the Accused No.3, Paro Yadav arrived. The Appellant No.2 exhorted the Accused No.3 to kill the Deceased.

3) Thereafter, the Deceased tried to run away when the Accused No.3 fired a bullet at him using a musket, hitting the back of the Deceased. Despite attempting to flee, the Deceased fell near the wheat field of one, Chadi Rai. Subsequently, all three Accused started assaulting PW4. When PW5 attempted to intervene, the Accused No.3 also assaulted him. The Accused No.3 further assaulted PW4 with the butt of the musket. The villagers arrived upon hearing the noise, prompting the Accused to flee. According to the Prosecution, apart from PW4 and PW5, the incident was witnessed by Rinku Yadav (PW1), Pinku Yadav (PW2), and Subodh Pd. Yadav (PW3). Jawahar Yadav and one Tribedanand were also witnesses who were not examined.

4) The Accused Nos. 1 and 2 have preferred this Appeal. The learned Trial Court convicted the Accused No. 3, for the Offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC) (Punishment for murder). The Appellants-Accused No. 1 and 2 were convicted for the offences punishable under Section 302 read with Section 34 of the IPC (Acts done by several persons in furtherance of common intention) and Section 325 (Punishment for voluntarily causing grievous hurt) read with Section 34 of the IPC. Further, the Appellants underwent life imprisonment for the Offence punishable under Section 302 read with Section 34 of the IPC. They also received rigorous imprisonment for three years for the offence punishable under Section 325 read with Section 34 of the IPC.

5) The motive asserted by the Prosecution is that two months before the incident, the Accused No.3 had stolen a horse belonging to Awadhi Yadav. Upon learning about the theft, Awadhi Yadav requested the Accused No.3 to return the horse. When the Accused No.3 attempted to assault Awadhi Yadav, the Deceased intervened to save him. Consequently, the Accused No.3 harbored resentment towards the Deceased. Both Courts have accepted the testimony of the eyewitnesses.

6) Thereafter, separate Appeals were filed by the Appellants and the Accused No. 3 before the Patna High Court. But the Appeals were dismissed by the impugned Judgment and Order dated 07.10.2005. Later, the Accused No. 3, filed a Petition for Special Leave to Appeal (Criminal) No. 4802 of 2006, which the Supreme Court further dismissed by its Order dated 11.12.2006.


Aggrieved by the Impugned Judgment and Order of the High Court dated 07.10.2005. The Appellant filed another Appeal before the Hon’ble Apex Court on 17.03.2011, where the Bench made the following observations:


A) The primary question raised is whether the conviction of the Appellants under Section 302 read with Section 34 IPC can be sustained when the main Accused i.e. Accused No. 3 was not charged under Section 34.

B) The secondary question before the Supreme Court is the non-examination of certain eyewitnesses.


(i) The Apex Court notes that while the Accused No. 3 was charged solely under Section 302 of the IPC, Section 34 was applied only to the Appellants- Accused No. 1-2. The Court explained that Section 34 introduces vicarious liability, and even without its application, the Accused No. 3 could have been convicted under Section 302 IPC for causing the death. Section 34 IPC was applied to the Appellants based on the allegation of a shared common intention with the Accused No. 3.

(ii) The Bench clarified that to establish a case under Section 34 IPC, there is no requirement to prove prior conspiracy or premeditation. The existence of a common intention can be formed just before or during the occurrence of the criminal act. In this case, the fatal act was committed by the Accused No. 3, but the Appellants were held liable under Section 34 based on their alleged common intention.

(iii) The Supreme Court addressed the challenge regarding the non-examination of certain eyewitnesses. Further, the Bench acknowledged that five eyewitnesses were examined, and the failure to examine others would not automatically lead to an adverse inference against the Prosecution. The Apex Court reviewed the testimonies of the witnesses and found them consistent, hence, rejected the challenges to their credibility.

(iv) The Supreme Court emphasized that the quality of evidence is more important than quantity. The Bench observed that the eyewitnesses, despite being close relatives of the Deceased, provided testimony of sterling quality. The Apex Court scrutinized the evidence closely and found it to be credible.

(v) The Bench considered the conduct of the Appellants during the incident, thereby, noting that they were together and in the company of the Accused No. 3. The Appellants were carrying sticks, and the Accused No. 3 had a musket. The Supreme Court concluded that the Appellants acted in concert, and the existence of common intention was justified.


Based on the aforementioned facts, the Supreme Court upheld the conviction of the Appellants-Accused No. 1-2 under Section 302 read with Section 34 of IPC, despite Accused No. 3 not being charged under Section 34, but only under Section 302 IPC. The Apex Court clarified that Section 34 IPC introduced vicarious liability and could be applied even when the main Accused acted alone. The quality of eyewitness testimony, provided by close relatives of the Deceased, was deemed credible after careful scrutiny. The Bench emphasized that the failure to examine certain eyewitnesses did not automatically cast doubt on the Prosecution’s case. The Appellants’ conduct, acting in concert with the Accused No. 3, supported the finding of a common intention.

Hence, the Appeal was dismissed, and the Appellants were directed to surrender for the remaining sentence, with instructions for the State Government to consider their case for permanent remission in due course.


Sakshi Raghuvanshi

Legal Associate

The Indian Lawyer

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