http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  903 of 2006

PETITIONER: Surinder Singh alias Chhinda and Anr.

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 31/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.729 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.   

       Appellants call in question legality of the judgment  rendered by a Division Bench of the Punjab and Haryana High  Court dismissing the appeal filed by the appellants and  thereby confirming the judgment of conviction and sentence  passed by learned Sessions Judge, Rupnagar.  The appellants  were convicted for offences punishable under Section 302/323  read with Section 34 of Indian Penal Code, 1860 (in short the  ’IPC’ ). Accused \026appellant-Narinder Singh was sentenced to  undergo imprisonment for life for commission of offence  punishable under Section 302 IPC with a fine of Rs.5,000/-  with default stipulation.  He was, further sentenced to undergo  rigorous imprisonment for six months in terms of Section 323  read with Section 34 IPC and to pay a fine of Rs.200/- with  default stipulation. Accused-appellant, Amarjit Singh was  sentenced to undergo imprisonment for life for commission of  offence punishable under Section 302 read with Section 34  IPC and to pay a fine of Rs.2,500/- with default stipulation. He  was further sentenced to undergo rigorous imprisonment for  six months in terms of Section 323 IPC and to pay a fine of  Rs.200/- with default stipulation.   

Prosecution case as unfolded during trial is as follows:

Statement was given by lnderjit (PW 8) to ASI Sukhjit  Singh in Civil Hospital, Morinda on 10.4.1996 at 11.50 P.M.  lnderjit stated that he along with his son Pawan Kumar  (hereinafter referred to as ’deceased’),  Amarjit Singh son of  Ram Singh and Ved Parkash were coming from their house  and going towards the market for some domestic work. When  they reached near the house of one Khushal Singh, at about  9.00 P.M., accused Narinder Singh @ Nita armed with a knife  like a dagger, Amarjit Singh @ Amba armed with a lathi,  Surinder Singh @ Chhinda and Raja Singh son of Gurmukh  Singh  who were not armed met them. Accused persons  stopped them and stated that they wanted to talk to them. As  complainant Inderjit went forward, accused Amarjit Singh  gave a lathi blow on his head. Pawan Kumar, the son of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

complainant, came forward to rescue him. Raja Singh and  Surinder Singh caught hold of Pawan Kumar and Narinder  Singh @ Nita thrust a knife in the chest of deceased who fell  down. On this, Inderjit fell upon his son to save him.  Thereafter, accused Raja Singh, Surinder Singh and Amarjit  Singh gave fist and slap blows to the complainant.  Complainant raised a hue and cry. Accused persons fled away  from there. Amarjit Singh son of Ram Singh, Ved Parkash and  the complainant then took deceased to Civil Hopsital,  Morinda, but his life could not be saved.

The motive for the commission of the offence was that  some days earlier, Narinder Singh @ Nita had teased the  complainant’s daughter Nirmla Devi. Complainant had  reprimanded him and hot words were exchanged between  them. Due to this, appellants committed the murder of the  deceased. On the basis of this statement, formal FIR, Ex. PJ,  was registered on 11.4.1996 at 12.05 A.M. in Police Station  Morinda. Special report reached the Additional Chief Judicial  Magistrate, Rup Nagar on 11.4.1996 at 3.00 A.M.

       In order to further its case, prosecution examined  thirteen witnesses. PWs 8 and 9 were stated to be eye- witnesses. Though PW-9 partially departed from his statement  made during investigation, the residue was considered  relevant. The trial Court on analysis of the evidence found the  accused guilty and convicted the accused persons and  sentenced them.

       Accused persons filed appeal before the High Court and  questioned correctness of trial Court’s judgment.  

       The High Court did not find any substance in the appeal  and dismissed the same. Stand before the High Court was that  there is no material to find the accused guilty.  

       Accused Amarjit and Narinder have not preferred any  appeal against High Court’s judgment. This appeal is by  Surinder and Raja.  

       Learned counsel for the appellants submitted that  Section 34 has no application so far as the appellants are  concerned. The prosecution has not brought any cogent  evidence to show that the appellants had shared any common  intention for the murder of the deceased.  

       Learned counsel for the respondent-State, on the other  hand supported the judgment of the courts below.  With  reference to the FIR registered in Police station, Rup Nagar it  was submitted that same clearly discloses that the presence of  the accused persons at the time of assault has been  established.   

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 the circumstances appearing from the proved  facts of the case and the proved circumstances. In order to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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 contents of the Section are 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.  

       As it originally stood the Section 34 was in the following  terms:

"When a criminal act is done by several  persons, each of such persons is liable for that  act in the same manner as if the act was done  by him alone."

In 1870, it was amended by the insertion of the words "in  furtherance of the common intention of all" after the word  "persons" and before the word "each", so as to make the object  of Section 34 clear.  This position was noted in Mahbub Shah  v. Emperor (AIR 1945 Privy Council 118).   

         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. These  aspects have been highlighted in Harbans Kaur v. State of  Haryana [2005 (9) SCC 195].  

When the factual scenario is seen the application of  Section 34 of the IPC appears to be inappropriate so far  murder of the deceased is concerned. In addition, the  appellants were not armed.  But the evidence is clear that they  restrained movement of the deceased when there was a  quarrel. There is, however, no definite evidence that the  common intention was murder. But the fact that two co- accused were armed with knife and lathi is of relevance and  significance. They came together and left together. That being  so, the conviction is altered applying the principle set out  above.  Appropriate conviction will be under Section 304 Part  II IPC read with Section 34 IPC. Custodial sentence of seven

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

years would meet the ends of justice.

Appeal is allowed to the aforesaid extent.