REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     469            OF 2009 (Arising out of S.L.P (Crl.) No.352 of 2008)

Chimanbhai Jagabhai Patel ..Appellant  

versus

 State of Gujarat & Anr. ..Respondents              

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  in  this  appeal  by  accused  no.2  is  to  the  judgment  of  a

learned Single Judge of the Gujarat High Court upholding the conviction of

the appellant for offences punishable under Section 307 read with Section

34 and Section 120 B of the Indian Penal Code, 1860 (in short the ‘IPC’).

Learned Additional Sessions Judge, Valsad, had recorded the judgment of

conviction and had imposed sentence of five years for the first offence and

no separate sentence was imposed for latter offence.  Fine of Rs.500/- with

default stipulation was also imposed.

3. Background facts in a nutshell are as follows:

On 26.11.1987 around 07:30 p.m. in  village  Kaanjan

Ranchhod,  Tal  in  Dist.  Valsad,  the  appellant-accused  no.1  called  the

complainant Kalaben Jagabhai Patel at Khadi to take money and also told

her that he had some work with her. The accused no.2 also reached at the

same place from where both the accused took the complainant in Vadi of

Chamarbhai Revlabhai, where for about half an hour, they were talking and

thereafter with an intention to kill the complainant they, forcibly made the

complainant drink an insecticide used in Chilly Crop named as ‘Eka Laxys

EC.25’.  The  accused  no.  2  caught  hold  of  the  complainant  and  thus,

committed offence of an attempt to murder the complainant.

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The  complainant  was  residing  at  Village  ‘Kaanjan  Ranchhod’  of

Taluka  Valsad  along  with  her  mother  and  brothers.  The  father  of  the

complainant  had  expired  about  6-7  years  ago.  She  had  studied  upto  8th

Standard. On 26.11.1987, the complainant had gone to Khadi for washing

the clothes at about 12 noon. At that time, her aunt had also come to wash

the clothes and after completing the work of washing clothes, she (the aunt)

went  away.  Thereafter,  around  2  noon,  Satishbhai  Nichhabhai  and

Ishwarbhai  Khusalbhai,  residents  of  the  same  Faliya  as  that  of  the

complainant, had come to wash their clothes. The complainant, after getting

her clothes dried around 3 O’clock, started to go to her house. On the way,

the accused no.1 Jayantibhai Gulabbhai met her near his field and asked the

complainant to come at Khadi in the evening to collect money. He (accused

no.1) also told that he has some personal work with her. The complainant

told him (accused no.1) that she will come in the evening and went to her

home. Thereafter around 7:00 p.m., the complainant went to ‘Khadi’ where

the accused no.1 was present. While she was talking with the accused no.1,

the appellant-accused no.2 Chimanbhai Jagabhai reached there. Thereafter,

both the accused took the complainant to Vadi of Chamarbhai. There they

talked  for  about  an  hour.  Thereafter,  all  of  a  sudden  accused  No.2

Chimanbhai  Jagabhai  caught  hold  of  the  complainant  and  accused  No.1

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Jayantibhai took out a bottle of poisonous medicine used as insecticide in

chilly crop forcibly poured the same in the mouth of the complainant. As the

complainant was caught hold of by the accused no.2 Chimanbhai Jagabhai,

she could not shout. On medicine being administered to the complainant,

she fainted and the accused ran away from the place. After sometime the

complainant regained consciousness and she shouted for help. On hearing

shouts of the complainant, her brother Nahhubhai, Ishwarbhai and Ukadbhai

came  running  there  and  they  brought  the  complainant  to  the  house  of

Ishwar.  There  she  was administered  juice  of  Neem tree,  where  after  the

complainant vomited. The complainant was then admitted, in the hospital at

Valsad. On the next day, Mamlatdar, Valsad, recorded the statement of the

complainant. The real cause of the incident was the love affair between the

complainant Kalaben and accused no.1 Jayantibhai as a result of which the

complainant  became  pregnant.  The  accused  Jayanatibhai  advised  the

complainant and also gave some tablets to her to get the child aborted, but

as it  was not  possible,  the complainant  asked the accused Jayantibhai  to

marry her.  Initially, he agreed for the same, but then he turned around and

did not marry the complainant. The brother of the complainant Nabhubhai

then talked to Hirkabhai and meeting of ‘Caste Panch’ was called.   There it

was agreed that Jayantibhai and complainant be married.  But as the accused

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Jayantibhai was not willing to marry the complainant,  he tried to kill  the

complainant by administering the poison forcibly.

The  investigation  was undertaken  and charge  sheet  was  filed.  The

trial court placed reliance on the evidence of the witnesses and found the

appellant guilty. Emphasis was laid on the evidence of the complainant (PW

5), Nabhubhai Jagabhai (PW8), Balubhai Maganbhai (PW5) and Dr. Ram

Ratan (PW2).   

Before the High Court the primary stand in appeal was that offence

under Section 307 is not made out. It was also submitted that Section 34 has

no  application.  The  High  Court  did  not  accept  this  plea  and  found  the

appellant, who was A2 before the trial court, guilty.  The High Court held

that the present appellant rightly been convicted by application of Section

34 IPC.

4. The  stand  taken  before  the  High  Court  was  reiterated  by  learned

counsel  for  the  appellant.  Additionally,  it  was  submitted  that  out  of  the

sentence  of  five  years  imposed,  the  appellant  had  already  undergone

sentence of more than 40 months and is entitled to certain remissions.

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5. Learned counsel for the respondent-State on the other hand supported

the judgment of the trial court as affirmed by the High Court.

6. The  essential  ingredients  required  to  be  proved  in  the  case  of  an

offence under Section 307 are:

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence

of the act of the accused; and

(iii) that such act was done with the intention of causing death; or that

it was done with the intention of causing such bodily injury as: (a) the

accused knew to be likely to cause death;  or (b) was sufficient  in the

ordinary course of nature to cause death, or that the accused attempted to

cause death by doing an act known to him to be so imminently dangerous

that it must in all probability cause (a) death, or (b) such bodily injury as

is likely to cause death, the accused having no excuse for incurring the

risk of causing such death or injury.

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7. Section 34 has been enacted on the principle of joint liability in the

commission 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 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

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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.

8. 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  commission  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

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himself.  For applying Section 34 it is not necessary to show some overt act

on the part of the accused.

9. In the background of the aforesaid provisions the trial court and the

High Court was justified in holding that the appellant was guilty of offence

punishable under Section 307 read with Section 34 IPC.   

10. Coming  to  the  question  of  sentence  considering  the  nature  of  the

accusations,  the role  played by the appellant  and the  period  of  custodial

sentence already undergone without remission, the same is restricted to the

period  already undergone.   The appellant  shall  be released  from custody

forthwith unless required to be in custody in any other case.

11. The appeal is disposed of accordingly.

……..……....................................J. (Dr. ARIJIT PASAYAT)

……..… …....................................J.

(Dr. MUKUNDAKAM SHARMA) New Delhi,

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March 16, 2009  

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