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CASE NO.:

Appeal (crl.) 1034 of 1997

PETITIONER:

Girija Shankar

RESPONDENT:

State of U.P.

DATE OF JUDGMENT: 04/02/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

The appellant questions his conviction for offence

punishable under Section 302 read with Section 34, Section

307 read with Section 34 and Section 394 of the Indian Penal

Code, 1860 (in short 'the IPC').

Trial Court had convicted the appellant and 3 others

who faced trial with him for the offences relatable to

Sections 302 and 307 read with Section 34; and Section 394

IPC. Each was sentenced to undergo imprisonment for life

for the first offence and for the other two offences 5 years

imprisonment on each count. All the four accused persons

preferred appeal before the High Court. During pendency of

the appeal before the High Court two of them, namely, Iqbal

Sankar and Jungli (A-3 and A-4 respectively) died and the

appeal stood abated so far as they are concerned. The

conviction and sentence were maintained so far as the

appellant and A-1 Devi Shankar are concerned. It is pointed

out that the SLP filed by A-1 Devi Shankar has been

dismissed by this Court.

Prosecution version and the stand taken by the accused

during trial are essentially as follows:

Arun Singh, H.P. Tewari (PWs 1, 3 respectively) and the

deceased were coming after seeing the fair at Bhuvreshwar

and were going back to their village. On the way, near the

village Bhawalia at about 7.30 p.m. when the sun had set,

they felt the need to some Bedi and went to purchase it.

The weather was cloudy and there was drizzling. They entered

in village and purchased the Bedi from a shop and decided

not to go further to their village, as it was dark and rain

had started falling, they decided to stay at the house of

Raj Bahadur Singh (PW-5), whom (PW-3) claimed to know.

In the meantime, the accused persons saw them and

thought they are criminals. They shouted that being

notorious should be beaten. The deceased and PWs 1, 3, and 5

replied that they were innocent villagers and had decided to

stay in the house of PW-5 because of rain. So, saying they

proceeded towards the (PW-5). After they had gone few steps,

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suddenly A-1 fired two shots, one of which hit the deceased

and other hit PW-3. When PWs 1 and 3 and the deceased

shouted, many villagers including PW-5 came there. There

was exchange of hot words and A-2, A-3 and A-4 assaulted PW-

3. A-3 removed gold ring and watch of the deceased. The gun

of Harihar Prasad Tewari (PW-3) was snatched away by A and

it was deposited next day in the police station.

Seven witnesses were examined to further the

prosecution version. Three of them i.e. Arun Singh (PW-1),

H.P. Tewari (PW-3) and R.B. Singh (PW-5) claimed to be

eyewitnesses. The Trial Court found the evidence of the

eyewitnesses to be credible, cogent and accordingly

convicted and sentenced as noted above. The High Court did

not find any infirmity in the conclusions of the Trial Court

to warrant interference.

In support of the appeal, learned counsel for the

appellant submitted that no role has been ascribed to the

appellant so far as death of deceased is concerned. It is

the prosecution case itself, that appellant and the two

accused persons who have died during appeal before High

Court assaulted only PW-3 with lathies. Devi Shankar fired

shots one of which hit the deceased, and the other PW-3. So

far as accusations relating to Section 394 IPC are

concerned, there is no evidence that the appellant snatched

gun of PW-3 or in any manner facilitated snatching. Even

the snatching of the ring is attributed to somebody else.

In any event, Section 34 would have no application to the

case at hand.

Per contra, learned counsel for the State submitted

that all the four accused persons questioned the propriety

of the presence of the deceased and the eyewitnesses in the

village in the dark and thinking that they were persons of

ill-repute who had come to the village for the purpose of

decoity, they were assaulted. Therefore, Section 34 was

clearly applicable. Similar, was the submission respect of

snatching of the gun from PW-3 which was deposited with the

police on 25.9.1978 i.e. the day following the day of

occurrence.

It is noticed that neither the Trial Court nor the High

Court assigned any reason for applying Section 34 IPC. On

surmises and conjectures, it was observed by the Trial court

that though there was no direct evidence showing pre-concert

or earlier meeting of mind, the possibility of it having

developed at the spot cannot be ruled out. For coming to

such conclusion, there was neither any direct or

circumstantial evidence. So far as the High Court is

concerned, it appears that no definite finding has been

recorded. The specific plea of the accused-appellant before

it that Section 34 is not applicable.

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

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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

commission of the crime. The true concept of 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 (AIR 1977 SC 109), 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.

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 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 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 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.

The evidence on record does not show that the accused

persons shared the common intention to kill the deceased.

It is accepted that the first reaction after questioning the

deceased and PWs 1 and 2 was that they were criminals,

notorious and should be beaten. No further act is

attributed. They even did not chase them. It is also

accepted that after they had gone some distance A-1 fired

the gun twice. It appears from the evidence of PWs 1 and 3

that A-1 was also armed with lathi. There is no evidence to

show that other accused persons were aware that he was also

carrying a gun or that he intended to use it. The Trial

Court having accepted that there was no evidence of any type

to show pre-concert came to a hypothetical conclusion that

it may have developed at the spot. There is no material to

support the conclusion. The High Court unfortunately did

not specifically deal with this aspect. The inevitable

conclusion is that the appellant cannot be convicted in

terms of Section 302 read with Section 34 IPC.

That brings us to the question regarding the legality

of conviction under Section 307 IPC read with Section 34

IPC. PW-3 has sustained, as noted in the injury report,

serious injuries on different parts of his body. It has been

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established by the evidence of PW-3; an injured witness and

other eyewitnesses that he was assaulted by the appellant

and the other accused persons. Learned counsel for the

appellant submitted that the injuries which can be

attributed to the appellant were not of very serious nature,

and the most serious injury was the one which PW-3 sustained

on account of the firing by A-1. We find that PW-3 had

sustained 11 injuries. Though injury no.1 was attributed to

fire arm, there were two other injuries which were

considered to be very serious.

Section 307, IPC reads :

"Whoever does any act with such

intention or knowledge, and under such

circumstances that, if he by that act caused

death, he would be guilty of murder, shall

be punished with imprisonment of either

description for a term which may extend to

ten years, and shall also be liable to fine;

and, if hurt is caused to any person by such

act, the offender shall be liable either to

imprisonment for life, or to such punishment

as is hereinbefore mentioned."

To justify a conviction under this Section, it is not

essential that bodily injury capable of causing death should

have been inflicted. Although the nature of injury actually

caused may often give considerable assistance in coming to a

finding as to the intention of the accused, such intention

may also be deduced from other circumstances, and may even,

in some cases, be ascertained without any reference at all

to actual wounds. The Section makes a distinction between an

act of the accused and its result, if any. Such an act may

not be attended by any result so far as the person assaulted

is concerned, but still there may be cases in which the

culprit would be liable under this Section. It is not

necessary that the injury actually caused to the victim of

the assault should be sufficient under ordinary

circumstances to cause the death of the person assaulted.

What the Court has to see is whether the act, irrespective

of its result, was done with the intention or knowledge and

under circumstances mentioned in the Section. An attempt in

order to be criminal need not be the penultimate act. It is

sufficient in law, if there is present an intent coupled

with some overt act in execution thereof.

This position was highlighted in State of Maharashtra

v. Balram Bama Patil and Ors. (1983 (2) SCC 28).

When the factual background is considered in the

background of true ambit of Section 307, the inevitable

conclusion is that the appellant has been rightly convicted

under Section 307 read with Section 34 IPC.

Coming to the question whether Section 394 would have

any application to the facts of the case, it is an admitted

case of the prosecution that the snatching of the gun and

the other articles were not attributed to the appellant and

also Section 34 was not pressed into service for the

accusations. That being so, the conviction under Section

394 IPC so far as the appellant is concerned cannot be

maintained. The conviction is accordingly set aside.

In the ultimate, conviction under Section 307 read with

Section 34 IPC and sentence imposed by Trial Court and

affirmed by High Court need no interference and are

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confirmed.

Appeal is allowed to the extent indicated above.