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CASE NO.:

Appeal (crl.) 93-95 of 2001

PETITIONER:

Lallan Rai & Ors.

RESPONDENT:

State of Bihar

DATE OF JUDGMENT: 14/11/2002

BENCH:

Umesh C. Banerjee & B.N. Agrawal.

JUDGMENT:

JUDGMENT

BANERJEE,J.

Four decades ago, the Constitution Bench in Mohan Singh

(Mohan Singh v. State of Punjab 1962 Supp. (3) SCR 848) has

been rather lucid in its expression as regards differentiation

between Section 149 and Section 34 of the Indian Penal Code. In

Mohan Singh this Court stated :

". Like Section 149, Section 34 also deals with

cases of constructive criminal liability. It provides that

where 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. The essential constituents of

the vicarious criminal liability prescribed by Section 34

is the existence of common intention. If the common

intention in question animates the accused persons and

if the said common intention leads to the commission of

the criminal offence charged, each of the persons

sharing the common intention is constructively liable

for the criminal act done by one of them. Just as the

combination of persons sharing the same common

object is one of the features of an unlawful assembly, so

the existence of a combination of persons sharing the

same common intention is one of the features of

Section 34. In some ways the two sections are similar

and in some cases they may overlap. But,

nevertheless, the common intention which is the basis

of Section 34 is different from the common object

which is the basis of the composition of an unlawful

assembly. Common intention denotes action-in-

concert and necessarily postulates the existence of a

pre-arranged plan and that must mean a prior meeting

of minds. It would be noticed that cases to which

Section 34 can be applied disclose an element of

participation in action on the part of all the accused

persons. The acts may be different; may vary in their

character, but they are all actuated by the same common

intention. It is now well-settled that the common

intention required by Section 34 is different from the

same intention or similar intention. As has been

observed by the Privy Council in Mahbub Shah v.

Emperor (1945 L.R. 72 I.A. 148), common intention

within the meaning of Section 34 implies a pre-

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arranged plan, and to convict the accused of an offence

applying the section it should be proved that the

criminal act was done in concert pursuant to the pre-

arranged plan and that the inference of common

intention should never be reached unless it is a

necessary inference deducible from the circumstances

of the case."

Four decades later, however, a Three-Judge Bench of this

Court in Suresh (Suresh & Anr. v. State of U.P. 2001 (3) SCC

673) had the following to state pertaining to Section 34 of the

Indian Penal Code.

"Section 34 of the Indian Penal Code recognises

the principle of vicarious liability in criminal

jurisprudence. It makes a person liable for action of an

offence not committed by him but by another person

with whom he shared the common intention. It is a

rule of evidence and does not create a substantive

offence. The Section gives statutory recognition to the

commonsense principle that if more than two persons

intentionally do a thing jointly, it is just the same as if

each of them had done it individually. There is no

gainsaying that a common intention presupposes prior

concert, which requires a prearranged plan of the

accused participating in an offence. Such preconcert or

preplanning may develop on the spot or during the

course of commission of the offence but the crucial test

is that such plan must precede the act constituting an

offence. Common intention can be formed previously

or in the course of occurrence and on the spur of the

moment. The existence of a common intention is a

question of fact in each case to be proved mainly as a

matter of inference from the circumstances of the case.

The dominant feature for attracting Section 34 of

the Indian Penal Code (hereinafter referred to as "the

Code") is the element of participation in absence

resulting in the ultimate "criminal act". The "act"

referred to in the later part of Section 34 means the

ultimate criminal act with which the accused is charged

of sharing the common intention. The accused is,

therefore, made responsible for the ultimate criminal act

done by several persons in furtherance of the common

intention of all. The section does not envisage the

separate act by all the accused persons for becoming

responsible for the ultimate criminal act. If such an

interpretation is accepted, the purpose of Section 34

shall be rendered infructuous.

Participation in the crime in furtherance of the

common intention cannot conceive of some

independent criminal act by all accused persons,

besides the ultimate criminal act because for that

individual act law takes care of making such accused

responsible under the other provisions of the Code.

The word "act" used in Section 34 denotes a series of

acts as a single act. What is required under law is that

the accused persons sharing the common intention must

be physically present at the scene of occurrence and be

shown not to have dissuaded themselves from the

intended criminal act for which they shared the

common intention. Culpability under Section 34

cannot be excluded by mere distance from the scene of

occurrence. The presumption of constructive intention,

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however, has to be arrived at only when the court can,

with judicial servitude, hold that the accused must have

preconceived the result that ensued in furtherance of the

common intention. A Division Bench of the Patna

High Court in Satrughan Patar v. Emperor (AIR 1919

Pat 111) held that it is only when a court with some

certainty holds that a particular accused must have

preconceived or premeditated the result which ensued

or acted in concert with others in order to bring about

that result, that Section 34 may be applied."

What then is the fact situation said to have been proved in the

present case ? It is in this context the factual score thus ought to

be noticed at this juncture.

On the factual score, it appears that 14 accused persons were

charged under Sections 302/149 and 307/34 IPC for committing

the murder of Bindeshwari Rai on 19th March, 1992 at 8.00 p.m.

All the 14 accused persons were held guilty for the murder by the

learned Sessions Judge : whereas accused Rajendra Rai, Uma

Shankar Rai, Sheo Bachan Rai, Shila Nath Rai, Dharm Nath Rai,

Satyendra Sahni alias Satyendra Kumar Sahni and Bankey Rai

have been convicted under Section 302 IPC and sentenced to

undergo rigorous imprisonment for life. All the 14 accused

persons, namely Rajendra Rai, Lallan Rai son of Rajendra Rai,

Uma Shankar Rai, Prithvi Rai, Ram Janam Rai, Sudarshan Rai,

Sheo Bachan Rai, Sipar Rai, Birendera Rai, Dharm Nath Rai,

Bankey Rai, Shila Nath Rai, Lallan Rai son of Bankey Rai and

Satyendra Sahni alias Satyendra Kumar Sahni have been held

guilty under Section 302/149 IPC and have been convicted

thereunder. Each of them has been sentenced to undergo

imprisonment for life under Section 302/149 IPC. All the

convicts are, however, presently on bail.

The convicts Uma Shankar Rai, Ram Janam Rai, Sudarshan

Rai, Prithvi Rai, Lallan Rai son of Rajendra Rai have been held

guilty under Section 307/34 IPC and they have been convicted

thereunder. Each of them has been sentenced to undergo R.I. for

five years under Section 307/34 IPC.

The High Court, however, on appeal on 10th May, 2000,

confirmed the conviction and sentences passed by the learned

Sessions Judge under Section 302 IPC against Rajendra Rai, Uma

Shankar Rai, Shila Nath Rai, Bankey Rai, Dharm Nath Rai and

Sheo Bachan Rai but passed an order for acquittal for the accused

Satyendra Sahni of the charge under Section 302 IPC.

As regards Uma Shankar Rai, Ram Janam Rai, Sudarshan

Rai, Prithvi Rai and Lallan Rai, the High Court also confirmed the

conviction and sentences under Section 307 read with Section 34

IPC. The High Court however, acquitted all the accused persons

convicted and sentenced under Section 302/149 IPC and hence the

appeal before this Court upon the grant of leave.

At this juncture, it would be convenient to advert to the

prosecution case briefly, so as to appreciate the contentions raised.

The case of the prosecution, as would appear from the fardbeyan of

Birendra Rai (PW.9), in short, is that on the day of Holi festival i.e.

19.3.1992 at about 8 p.m., he along with his brothers Bindeshwari

Rai , Ruplal Rai and Ram Dahin Rai was returning from Taraiya

Bazar. When they reached their village, they saw all the 14

accused persons sitting at the house of appellant Rajendra Rai

variously armed with weapons. It is alleged that on the instigation

of appellant Rajendra Rai, all the accused persons encircled the

informant and his companions. Thereafter appellant Rajendra Rai,

Satyendra Sahni and Uma Shankar Rai inflicted injuries with

sword on the head of Bindeshwari Rai. Thereupon, appellant

Shila Nath Rai also gave a sword blow on his head. Like the

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abovenamed appellants, other appellants Bankey Rai and Dharm

Nath Rai assaulted deceased Bindeshwari Rai with 'farsa'. When

Bindeshwari Rai became senseless while appellant Sheo Bachan

Rai caused injury with Bhala, the other accused persons caused

injuries with their respective weapons. The informant further

stated that when he wanted to save his brother, appellant Uma

Shankar Rai attacked him with sword but the blow was warded off.

When P.Ws. Ram Dahin and Ruplal tried to intervene, appellant

Lallan Rai son of Rajendra Rai fired his pistol causing injury to

Ruplal Rai. It has been further alleged that the accused persons

after committing the murder of Bindeshwari Rai, threw his body in

a maize field, which was situated adjoining north to the road. The

informant and the other witnesses have claimed to have identified

the accused persons in the moonlit night. On the basis of the

aforesaid statement, Officer Incharge of Taraiya Police Station

took up investigation and ultimately having found a prima facie

case, submitted charge sheet. Thereupon, the Chief Judicial

Magistrate took cognizance of the offence and committed the case

to the Court of Session calling upon the appellants to face trial.

The records depict that one Dr. Dharamnath Singh (PW.11)

held the post-mortem examination on the dead body of

Bindeshwari Rai and he found the following ante-mortem injuries

on the person of the body :

(i.) Multiple incised wounds about eight in number of varying

dimension on the scalp, more on left side than on the right

side, mid-portion.

(ii) Incised wound about 3" x " bone deep on the left cheek.

(iii) Incised wound about 1" x " skin deep on the back of the

neck.

(iv) Multiple bruises of varying dimension on the back of

chest wall on both sides.

(v) Penetrating wound about " in diameter muscle deep on

the right side on the back of waist.

(vi) Incised wound about 3" x 1" bone deep on the right side

of chin.

On dissection, there were multiple fractures of scalp bone,

laceration of underlying membranes and brain matter with

collection of clotted blood in immediate vicinity of the injured

parts. On further dissection fracture of the right side of ramus of

the mandible was disclosed. Rigor mortis was present on all the

limbs.

The doctor's evidence reveals that the death of Bindeshwari

Rai was caused due to haemorrhage and shock as a result of

injuries to vital organs like brain and mandible caused by sharp

cutting weapon as also by sharp penetrating weapon such as Bhala.

The post-mortem examination was conducted within 24 hours.

Incidentally, there is nothing in the cross-examination of the

Doctor to discredit the evidence of the prosecution with regard to

the nature of injuries as also to the manner of assault.

It is on this state of the situation that Mr. PS Mishra, learned

Senior Advocate, appearing for the appellants with his usual

eloquence rather strongly contended that in view of the findings

recorded for charges under Section 302/149 IPC by the High Court

against which no appeal is preferred in this Court, it is clearly a

case where the appellants are supposed to have been convicted for

their individual acts and acts done in furtherance of the common

intention of all, which developed, if at all, in course of the assault

on Bindeshwari Rai. In the absence of any appeal against the said

acquittal for the offence under Section 302/149 IPC it will not be

legal to go by the evidence of existence of any pre-planning etc.

Though there is evidence that appellants who are convicted

under Section 302 IPC caused injury upon deceased Bindeshwari

Rai by lethal weapons on the head and various other parts of his

body, the medical evidence is clear that death was caused due to

haemorrhage and shock caused by the injuries to vital organs like

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brain and also mandible caused by sharp-cutting weapons may be

Farsa and sword and also sharp cutting penetrating weapon such

as a Bhala.

In the absence of evidence as to who caused fatal injury or

which injury in particular was fatal, conviction under Section 302

IPC of as many as six appellants (one of whom who was charged

to have hit on the head of the victim by sword has been acquitted

by the High Court) is not sustainable at all.

It is well settled that culpable homicide is genus and murder

is the specie and that all murders are culpable homicide but not

vice-versa. A combined reading of the provisions in Chapter XVI

of the IPC with respect to offences affecting the human body and

the exceptions and illustrations would show that without

ascertaining as to who caused the death or that one of many

injuries inflicted by a certain person alone was the cause of death,

no one can be, much less a number of persons together, be

convicted for their acts under Section 302 IPC simpliciter. More

than one person together can be convicted only with the aid of

Section 149 IPC (if their number is more than five) or Section 34

IPC if they act in furtherance of common intention. Since the

appellants, however are acquitted under Section 302/149 IPC, the

High Court could not have convicted as many as six persons under

Section 302 IPC.

Mr. Mishra further contended that it is settled law that several

persons may have similar intention yet they may not have the

common intention in furtherance of which they participated in

action. Elaborate discussion of the principles and dominant

features for attracting Section 34 IPC are well discussed and

explained in one of the latest pronouncements of this Court in

Suresh (supra).

In para 44 of the judgment in Suresh (supra) this Court (the

majority view) stated:

"Approving the judgments of the Privy Council in

Barendra Kumar Ghosh [AIR 1925 PC 1] and

Mahbub Shah [AIR 1945 PC 118] cases a three-

Judge Bench of this Court in Pandurang v. State

of Hyderabad [AIR 1955 SC 216] held that to

attract the applicability of Section 34 of the Code

the prosecution is under an obligation to establish

that there existed a common intention which

requires a prearranged plan because before a man

can be vicariously convicted for the criminal act

of another, the act must have been done in

furtherance of the common intention of all. This

Court had in mind the ultimate act done in

furtherance of the common intention. In the

absence of a prearranged plan and thus a common

intention even if several persons simultaneously

attack a man and each one of them by having his

individual intention, namely, the intention to kill

and each can individually inflict a separate fatal

blow and yet none would have the common

intention required by the section. In a case like

that each would be individually liable for

whatever injury he caused but none could be

vicariously convicted for the act of any or the

other. The Court emphasised the sharing of the

common intention and not the individual acts of

the persons constituting the crime. Even at the

cost of repetition it has to be emphasised that for

proving the common intention it is necessary

either to have direct proof of prior concert or

proof of circumstances which necessarily lead to

that inference and "incriminating facts must be

incompatible with the innocence of the accused

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and incapable of explanation or any other

reasonable hypothesis". Common intention,

arising at any time prior to the criminal act, as

contemplated under Section 34 of the Code, can

thus be proved by circumstantial evidence."

In Suresh (supra) this Court while recording the dominant

feature for attracting Section 34 has the following to state:

"The dominant feature for attracting Section

34 of the Indian Penal Code (hereinafter referred

to as "the Code") is the element of participation in

absence resulting in the ultimate "criminal act".

The "act" referred to in the later part of Section 34

means the ultimate criminal act with which the

accused is charged of sharing the common

intention. The accused is, therefore, made

responsible for the ultimate criminal act done by

several persons in furtherance of the common

intention of all. The section does not envisage the

separate act by all the accused persons for

becoming responsible for the ultimate criminal

act. If such an interpretation is accepted, the

purpose of Section 34 shall be rendered

infructuous."

For true and correct appreciation of legislative intent in the

matter of engrafting of Section 34 in the Statute Book, one needs

to have a look into the provision and as such Section 34 is set out

as below:

"34 - Acts done by several persons in

furtherance of common intention- 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."

A plain look at the Statute reveals that the essence of Section

34 is simultaneous consensus of the mind of persons participating

in the criminal action to bring about a particular result. It is trite

to record that such consensus can be developed at the spot. The

observations above obtain support from the decision of this Court

in Ramaswami Ayyangar & Ors. v. State of Tamil Nadu [AIR

1976 SC 2027].

In the similar vein the Privy Council in (Barendra Kumar

Ghosh v. King Emperor [AIR 1925 PC 1: 26 Cri. LJ 431] stated

the true purport of Section 34 as below:

"The words of Section 34 are not to be eviscerated

by reading them in this exceedingly limited sense.

By Section 33 a criminal act in Section 34

includes a series of acts and, further, 'act'

includes omission to act, for example, an omission

to interfere in order to prevent a murder being

done before one's very eyes. By Section 37,

when any offence is committed by means of

several acts whoever intentionally cooperates in

the commission of that offence by doing any one

of those acts, either singly or jointly with any

other person, commits that offence. Even if the

appellant did nothing as he stood outside the door,

it is to be remembered that in crimes as in other

things 'they also serve who only stand and wait.'"

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The above discussion in fine thus culminates to the effect that

the requirement of statute is sharing the common intention upon

being present at the place of occurrence. Mere distancing himself

from the scene cannot absolve the accused though the same

however depends upon the fact-situation of the matter under

consideration and no rule steadfast can be laid down therefor.

Turning attention to the factual score, once again, be it

noticed that the High Court has rendered the submissions of the

defence as regards the witnesses being on inimical terms as totally

hypothetical guesswork de hors the realities and in justification

thereof stated "Simply because another passage was available for

the prosecution party to go to their houses, it would be difficult to

hold that they were not going through the road in question where

occurrence took place." Incidentally, the evidence of PW.7 Ram

Dahin Rai, PW.9 Birendra Rai and PW.10 Ruplal Rai, the

informant, stand out to be in full corroboration of the prosecution's

case that no sooner Bindeshwari Rai and his companions arrived at

the place of occurrence, Rajendra Rai exhorted to kill and

thereafter assaulted him with sword. The High Court on

appreciation of the factual situation recorded the same and further

stated that Uma Shankar Rai also caused injury on the head of

Bindeshwari Rai by sword and when the latter fell down in a maize

field, Shila Nath Rai assaulted him with sword and Bankey Rai

with Farsa on his neck. It is on this score the High Court in fine

concludes as regards the appreciation of evidence to the effect:

"Thus in view of the consistent evidence of the injured eye

witness, there appears no reason to interfere with the findings of

the trial court so far it is with respect to those appellants who have

been convicted under Section 302 IPC."

The next issue seems to be rather important and we think it

expedient to quote paragraph 13 of the judgment impugned for its

proper appreciation :

"The next question, however, rises whether the

conviction and sentence against all the accused persons

under Section 302 read with Section 149 IPC can

sustain. At the very outset it may be noticed although

the trial court has convicted these appellants under this

count but no finding has at all been recorded whether

the appellants were the members of unlawful assembly

and that such unlawful assembly had the knowledge

that the main accused persons had the common object

to commit the murder of Bindeshwari Rai. Because as

would appear from the case of the prosecution, the

accused persons were sitting at the Baithaka of

appellant Rajendra Rai and this was nothing unusual

since it was the day of Holi festival. This is not the

case of the prosecution that these accused persons had

the knowledge or any such information that deceased

Bindeshwari Rai and his companion would return from

Taraiya Bazar to the village through that very path and

at that very time. Rather the above fact would show

that the occurrence in case took place all of a sudden.

Unless and until there is any evidence of the

prosecution that all the accused persons had assembled

at the place of occurrence with a common object to

commit the murder of Bindeshwari Rai, it would not be

proper to hold them guilty under Section 302 read with

149 IPC. Therefore, the conviction against such

appellants can at best be recorded under Section

324/149 IPC. Because the evidence on record suggests

that it was the individual act of appellants Rajendra Rai,

Uma Shankar Rai, Shila Nath Rai, Bankey Rai, Dharm

Nath Rai and Shiv Bachan Rai, who had committed the

murder of Bindeshwari Rai with their respective

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weapons."

It is on the basis of the observations as above, the High Court

came to a finding that the appeal on behalf of the appellants

Rajendra Rai, Uma Shankar Rai, Shila Nath Rai, Bankey Rai,

Dharam Nath Rai and Sheo Bachan Rai ought to be dismissed and

their conviction and sentence under Section 302 of the Indian

Penal Code as recorded by the trial court stood confirmed.

As regards the case for appellants Uma Shankar Rai, Ram

Janam Rai, Sudarshan Rai, Prithvi Rai and Lallan Rai, the High

Court did place strong reliance on the evidence of the injured

witnesses ascribing them to be most acceptable and trustworthy

evidence and as such confirmed the sentence under Section 307

read with Section 34 of the Indian Penal Code.

It is the conviction under Section 302 which is said to be not

in accordance with law and as such Mr. Mishra has been rather

vocal and emphatic on that direction. It is axiomatic that

procedural law is the hand-maid of justice and the Code of

Criminal Procedure is no exception thereto. Its incorporation in

the Statute Book has been to sub-serve the ends of justice and non-

observance of the technicalities does not and cannot frustrate the

concept of justice since technicality alone would not out-weigh the

course of justice.

We, however, hasten to add that in the event, however, there

being prejudice leading to a failure of justice, it cannot but be

treated to be an illegality, which is otherwise incurable in nature.

In one of the early decisions of this Court (Willie (William)

Slaney v. The State of Madhya Pradesh - 1955 (2) SCR 1140), the

Full Bench declared and settled the law on this score and it seems

for all times to come. This Court in a recent decision (Kammari

Brahmaiah &Ors. v. Public Prosecutor, High Court of A.P. JT

1999 (1) SC 259) once again reiterated the law so settled by Willie

Slaney (supra) in the similar vein and same tune. Incidentally,

Willie Slaney (supra) was decided in the year 1955 and on the

basis of the then existing Code of 1898, whereas Brahmaiah

(supra) has considered the new Code of 1973 and after

adumbrating the observations of Willie Slaney, this Court in

Brahmaiah observed :

"The aforesaid discussion leaves no doubt that

non-framing of charge would not vitiate the

conviction if no prejudice is caused thereby to the

accused. As observed in the aforesaid, the trial

should be fair to the accused, fair to the State and

fair to the vast mass of the people for whose

protection penal laws are made and administered.

Criminal Procedure Code is a procedural law and

is designed to further the ends of justice and not

to frustrate them by the introduction of endless

technicalities. In the present case, accused were

tried on the prosecution version that all of them

went at 3.30 p.m. in the field of the deceased; they

picked up the quarrel with him, inflicted injuries

to the deceased as narrated by the prosecution

witnesses, accused no.3 to 6 participated as stated

above; the statements were recorded under

Section 313 of the Cr.P.C. and the questions were

asked to the effect that they jointly came at 3.30

p.m. and caused injuries to the deceased as stated

by the prosecution witnesses and the role assigned

to accused no.3 to 6 was also specifically

mentioned. Hence, it is apparent that no prejudice

is caused to the accused who were charged for the

offence under Section 302, by not framing the

charge for the offence punishable under Section

302 read with 149. In this view of the matter, the

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conviction of the accused no.3 to 6 for the offence

punishable under Section 325 read with 149

cannot be said to be anyway illegal which require

to be set aside."

It is in this context Section 464 Cr.P.C. ought to be

noticed at this juncture. Section 464 Cr.P.C. reads thus :

"464. Effect of omission to frame, or absence

of, or error in, charge (1) No finding, sentence

or order by a Court of competent jurisdiction shall

be deemed invalid merely on the ground that no

charge was framed or on the ground of any error,

omission or irregularity in the charge including

any misjoinder of charges, unless in the opinion of

the Court of appeal, confirmation or revision, a

failure of justice has in fact been occasioned

thereby.

(2) If the Court of appeal, confirmation or

revision is of opinion that a failure of justice has

in fact been occasioned, it may

(a) in the case of an omission to frame a charge,

order that a charge be framed and that the trial be

recommenced from the point immediately after

the framing of the charge.

(b) in the case of an error, omission or

irregularity in the charge, direct a new trial to be

had upon a charge framed in whatever manner it

thinks fit;

Provided that if the Court is of opinion that

the facts of the case are such that no valid charge

could be preferred against the accused in respect

of the facts proved, it shall quash the conviction."

As regards the interpretation of Section 464 this Court has

the following to state in Kammari (supra) at paragraph 7:

"The aforesaid Section is in mandatory

terms and specifically provides what is to be

done in cases where charge is not framed or there

is an error, omission or irregularity in framing of

the charge. From the unequivocal terms of the

section, it can be stated that finding, sentence or

order could be set aside only in those cases where

the facts are such that no valid charge could be

preferred against the accused in respect of the

facts proved. Secondly, if the facts are such that

charge could be framed and yet it is not framed,

but there is no failure of justice, has in fact been

occasioned thereby the finding, sentence or order

of the Court of competent jurisdiction is not to be

set aside on that ground. Thirdly, if there is

failure of justice occasioned by not framing of the

charge or in case of an error, omission or

irregularity in charge re-trial of the case is to be

directed under sub-section (2)."

Incidentally, Section 464 corresponds to the provisions

contained in Sections 232(2), 535 and 537(6) of the old Code.

It is in this context the law laid down by this Court in

Kammari (supra) ought also to be noticed. This Court in paragraph

14 of the report stated as below:-

"14. The aforesaid discussion leaves no doubt that non-

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framing of charge would not vitiate the conviction if no

prejudice is caused thereby to the accused. As observed in

the aforesaid, the trial should be fair to the accused, fair to

the State and fair to the vast mass of the people for whose

protection penal laws are made and administered. Criminal

Procedure Code is a procedural law and is designed to further

the ends of justice and not to frustrate them by the

introduction of endless technicalities."

Similar is the observation of this Court in Narinder Singh v.

State of Punjab (2000 (4) SCC 603) recording therein that if the

ingredients of the Section are present, conviction in regard thereto

can be sustained.

The evidence available on record in particular that of injured

eye witnesses, namely, PWs.7, 9 and 10 and the "Fardbayan"

which was recorded without any loss of time to the effect that all

the accused persons encircled the informant and other witnesses

and inflicted injuries on Bindeshwari Rai (deceased) by deadly

weapons resulting into his death it is trustworthy and acceptable

and question of decrying the evidentiary value thereof does not and

cannot arise, more so, having regard to the corroborative evidence

available on record by the doctor who conducted the post-mortem.

The entire gamut of the matter in issue leaves no manner of doubt

the concerted action by reason of simultaneous conscious mind of

persons participating in the action to bring about the death of

Bindeshwari Rai and it is this piece of evidence which brings in the

element of Section 34 even though no charge was framed

thereunder. This conviction and sentence under Section 302 of the

Indian Penal Code can be maintained by adding Section 34 of the

Indian Penal Code thereto that is to say under Section 302/34 of

the Indian Penal Code.

As regards the conviction under Section 307 of the Indian

Penal Code, be it noted that upon consideration of the injury report

as sustained by Ruplal Rai (PW.10), Ram Dahin Rai (PW.7) and

Birendra Rai (PW.9), the factum of causing grievous hurt though

established but conviction under Section 307/34 of the Indian

Penal Code in the interest of justice ought to be altered to under

Section 326/34 of the Indian Penal Code. It is ordered

accordingly. The sentence, however, be also altered to a period of

two years without however imposition of any fine.

The appeals thus stand disposed of in the manner indicated

above. The appellants be taken into custody to serve out their

respective sentences and in the event they have already served out

their sentence, their bail bonds shall stand discharged.