http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

confirmed.           Appeal is allowed to the extent indicated above.