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PETITIONER: HETHUBHA ALIAS JITHUBA MADHUBA & ORS.

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT: 13/03/1970

BENCH: RAY, A.N. BENCH: RAY, A.N. DUA, I.D.

CITATION:  1970 AIR 1266            1971 SCR  (1)  31  1970 SCC  (1) 720  CITATOR INFO :  F          1971 SC1836  (6)  E          1981 SC 365  (2,3)

ACT: Code  of  Criminal Procedure, 1898,  s.  429--Difference  of opinion among two Judges--If third Judge can deal with whole case. Indian  Penal  Code, 1860--S. 34--Scope  of--Accused  acting pursuant to pre-arranged plan to attack two persons--Killing one  person  by  mistake instead of  the  other--If  ’common intention’ can be inferred.

HEADNOTE: The  three appellants were charged with offences  under  ss. 302  and  323  read  with  s. 34,  of  the  Penal  Code  and appellants 1 and 2 were charged with the individual offences under ss. 302 and 323 for intentionally causing the death of A, mistaking him for V and for causing simple hurt to V. The Sessions Judge acquitted all the three accused under s.  302 read with s. 34 but convicted them under s. 304 Part 11 read with   s.   34  and  sentenced  them  to   suffer   rigorous imprisonment  for five years.  Appellants 1 and 2 were  also convicted  for the offence under s. 323 and appellant 3  was convicted for the offence under s. 323 read with s. 34.  All three  were  sentenced  for these  convictions  to  rigorous imprisonment for terms. to run concurrently. On appeal to a Division Bench of the High Court one  learned Judge  held, that the first appellant alone was  responsible for  the  fatal  injury  on A and  found  him  guilty  under s.  .302, while the second and third appellants  were  found guilty  under s. 324 read with s.. 34.  The  second  learned Judge was of the view that all the accused must be acquitted as he was not satisfied with, the evidence and proof of.-the identity. of the accused.  The case was then placed-  before ,  a,  third learned Judge under s. 429 Cr.  P.C.  who  held that  the  first appellant must ’be convicted under  s.  302 while  the  second and third appellants must  be  convicted, under  s.  302  read  with s. 34 and all  of  them  must  be sentenced  to  suffer  rigorous prisonment  for  life.   The conviction of the first and second appellants under s.   323 and of the third appellant under s. 323 read with s. 34  was

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upheld. In appeal to this Court it was contended (i) that the  third learned  Judge under s. 429 Cr.  P.C. could only,.deal  with the differences between the two learned Judges and not  with the whole case; and (ii) that there was no comnmittee intend on  within  the meaning of supp I.P.C. on the  part  of  the three appellants to kill A as he was attacked by, mistake. HELD : Dismissing the appeal. (i) Section on of the Criminal  Procedure Code.states  "that when  the judges comprising the Court of Appeal are  equally divided in opinion the case with their opinion thereon shall be  laid  before another Judge of the same  Court  and  such Judge,  after  hearing,if  any, as  he  thinks   fit,  shall deliver his opinion, and  the judgment or order shall follow such  before another Judge, and, secondly, the Judgment  and order  will follow the, opinion of the third learned  Judge. It is, therefore, manifest that the third learned Judge  can or will deal with the whole case. [35 D-F] 32 Babu  and  Ors. v. State of Uttar Pradesh, [1965]  2  S.C.R. 771; referred to. (ii) The plea that A was mistaken for V would not take  away the common intention established by a pre-arranged plan  and participation  of all the accused in furtherance  of  common intention.   The  act might be done by one  of  the  several persons  in furtherance of the common intention of them  all without  each  one  of  them  having  intended  to  do   the particular  act in exactly the same way as an act  might  be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be don.-. [36 H] On  the  facts, it was clear that the attack took  place  in pursuance of a pre-arranged plan., The attack by  appellants 1 and 2 on A and the evidence showing that appellant 3  held back  P  during  the attack  all  proved  common  intention, participation   and  united  criminal  behaviour   of   all; appellant  3  was therefore equally responsible  and  guilty with appellants 1 and 2 who had attacked A. Shankarlal Kachrabbhai and Ors. v. State of Gujarat,  [1965] 1 S.C.R. 287; referred to. The   dominant   feature  of  s.  34  is  the   element   of participation  in actions.  This participation need  not  in all cases be by physical presence.  Common intention implies acting  in concert.  There is a pre-arranged plan  which  is proved  either  from conduct or from circumstances  or  from incriminating  facts.  The principle of joint  liability  in the  doing  of a criminal act is embodied in s.  34  of  the Indian Penal Code.  The existence of common intention is  to be  the basis of liability.  That is why the  prior  concert and  the  pre-arranged  plan is  the  foundation  of  common intention to establish liability and guilt. [36 E]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.100  of 1967. Appeal  from the judgment and order dated March  13,1967  of the Gujarat High Court in Criminal Appeal No. 566 of 1965. J. L. Hathi, K. L. Hathi and K. N. Bhat, for the appellant. S. K. Dholakia, Badri Das Sharma and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Ray,  J.-This  is an appeal from the judgment  of  the  High Court of Gujarat.

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The appellants were charged with offences under sections 302 and  323  read  with section 34 of the  Indian  Penal  Code. Accused  Nos.  1  and  2 were  charged  for  the  individual offences under sections 302 and 323 of the Indian Penal Code for  intentionally causing death of Amarji and  for  causing simple  hurt to Vaghji Mansangji.  The deceased  Amarji  was the brother-in-. law (sister’s husband) of Vaghji Mansangji. Two important eyewitnesses were Pabaji Dajibha and  Pachanji Kesarji.  Amarji 33 was  Pabaji’s mother’s sister’s son.  Pachanji is the  first cousin of Vaghji Mansangji. Accused  No. 3 Mulubha is the maternal uncle (mother’s  bro- ther)  of  accused No. 2 Ranubha Naranji and accused  No.  1 Hethubha alias Jitubha is the son of another maternal  uncle of accused No. 2. Accused  No. 2 was residing at Bhalot.  Vaghji also  resided there.  About two months prior to the date of the occurrence on  26 January, 1965 at 8 p.m. there was a  quarrel  between the  children of the house of accused No. 2 Ranubha and  the children  of  the house of Vaghji.  There  was  exchange  of words between the members of the two families.  Accused  No. 2  Ranubha  and  his father Naranji assaulted  the  wife  of Vaghji.   Vaghji  then filed a complaint.   Ultimately,  the complaint was compounded on the intervention of accused  No. 3  Mulubha.   The prosecution case is that  because  of  the behaviour  of  accused  No. 2 Ranubha towards  the  wife  of Vaghji,  Ranubha had to leave his own village of Bhalot  and had to go to reside with his maternal uncles at Bhuvad.  The further  prosecution case is that the relations  of  Ranubha thereafter went to village Bhalot for fetching the goods  of Ranubha  and  at that time they had  threatened  Vaghji  and others that Ranubha had to leave the village and Vaghji  and others  would  not  be able to continue to,  reside  in  the village. On 26 January, 1965 Amarji, Pabaji Vaghji and Pachanji  took their  carts  of  fuel wood for selling it  in  the  village Khedoi which is about 7 miles from Bhalot.  They left Bhalot at about 10 a.m. and reached Khedoi at about 1 p.m. The cart loads of fuel wood were sold in Khadoi by about 5 p.m.  They made  some  purchases and then left Khedoi at about  7  p.m. While  returning  home  Amarjis cart was in  the  front  and Pabaji,  Pachanji  and Vaghji followed him in.  that  order. There  was  not much distance between each cart.   When  the carts had gone about 2 miles from Khedoi and they were about to  enter  village Mathda, the three  accused  persons  were noticed  waiting on the roads.  All of them caught  hold  of Amarji  and attacked him who was in the first cart.  In  the meantime, accused No. 3, Mulubha, caught hold of the hand of Pabaji  and prevented him from going near  Amarji.   Mulubha was  armed with an axe.  Accused Nos.  1 and 2  dealt  knife blows to Amarji.  The prosecution suggested that the accused persons  realised their mistake that instead of Vaghji  they had  attacked Amarji, and so both the accused Nos. 1  and  2 left  Amarji and went to the cart of Vaghji and  gave  blows with  sticks  to  Vaghji.  On seeing the  attack  on  vaghji Pabaji  intervened  and  asked the accused  to  desist  from attacking Vaghji any 34 longer  as  they had already killed Amarji.   Thereupon  the accused  stopped attacking Vaghji.  By this time Amarji  had come staggering to the spot where Pabaji was standing.  Then Amarji was placed in one of the carts and Vaghji was made to sit in that cart.  Pachanji drove his cart first and the two carts without any drivers which had been formerly driven  by

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Vaghji  and Amarji, were kept in the middle and Pabaji  with the two injured men in his cart was driving his cart last. The  carts  were  taken  to  village  Khedoi.   It  is   the prosecution  case  that the three accused  persons  followed these carts up to a certain distance and then accused  Nos’. 1  and  2 left while accused No. 3  disappeared  near  Khari Vadi.   Pabaji took the carts to Moti khedoi and saw  police head   constable  Banesing  who  had  come  to  Khedoi   for patrolling  work.   Banesing  was  attached  to  the  police outpost at Bhuvad.  Banesing directed these persons to  take Amarji  to  the Khedoi hospital.  By that  time  Amarji  had died.   Banesing  left Khedoi with Pabaji for  Anjar  police station  which is about 8 miles from Khedoi.  They  reached, Anjar  at  about 11 p.m. and Pabaji’s  F.I.R.  was  recorded before  police  sub-inspector Khambholja.  The  police  sub- inspector  then  preceded to, Khedoi hospital.   Amarji  was declared to be dead.  The police sub-inspector recorded  the statements  of Vaghji and Pachanji and :then took  steps  in the investigation of the case. At the trial all the three’ accused denied having  committed the  offence.,., The Sessions Judge acquitted all the  three persons under section 302 read with section 34.  He  however convicted  all the accused for the offence punishable  under section 304 Part II read,with section 34 and sentenced  them to  suffer  rigorous imprisonment for five  years.   Accused Nos.   1 and 2 were convicted for the offence under  section 323  and accused No. 3 was convicted for the  offence  under section  323 read with section 34 of the Indian Penal  Code. Accused  Nos..  1 and 2 were sentenced  to  suffer  rigorous imprisonment  for  three  months while  accused  No.  3  was sentenced  to suffer rigorous imprisonment for  two  months. All the sentences were to run concurrent All   the accused filed appeals against  their  convictions. Before  the  Division’ Bench in the High  Court  of  Gujarat Divan, J. held that accused No. 1 alone was responsible  for the  fatal injury on Amarji and he was found guilty for  the offence  under section 302 while accused Nos. 2 and  3  were found,  guilty for the offence under section 324  read  with section 34.  Shelat, J. was of the view that all the accused must  acquitted  because  he’ was  not  satisfied  with  the evidence and proof of the identity of the accused. The  case  was then placed under Section  429  of  Criminal’ Procedure Code before Mehta, J. who held that accused No. 1 35 must  be Convicted for the offence under section  302  while accused Nos. 2 and 3 must be convicted for the offence under section  302 read with section 34 and all of them should  be sentenced  to  suffer rigorous imprisonment for  life.   The conviction of accused Nos.  1 and 2 under section 323 and of accused  No.  3 under section 323 read with section  34  was upheld.  The conviction of all the accused under section 304 Part  11  was  altered by convicting  accused  No.  1  under section 302 and accused Nos. 2 and 3 under section 302  read with section 34 of the Indian Penal Code. Counsel  for the appellants contended first that  the  third learned  Judge under section 429 of the  Criminal  Procedure Code  could only deal with the differences between  the  two learned  Judges  and  not with the  whole  case.   The  same contention  had been advanced before Mehta, J. in  the  High Court  who  rightly  held  that under  section  429  of  the Criminal Procedure Code the whole case was to be dealt  with by  him.   This  Court in Babu and Ors. v.  State  of  Uttar Peadesh (1) held that it was for tic third learned Judge  to decide  on  what  points the arguments would  be  heard  and therefore  he  was  free to resolve the  differences  as  he

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thought  fit.   Mehta, J. here dealt with  the  whole  case. Section  429  of the, Criminal Procedure Code  states  "that when  the Judges comprising the Court of Appeal are  equally divided  in  opinion, the case with their  opinion  thereon, shall  be  laid before another Judge of the same  Court  and such  Judge,  after such hearing, if any, as he  thinks  fit shall  deliver his opinion, and the judgment or order  shall follow  such  opinion".  Two things are  noticeable;  first, that  the,  case shall be laid before  another  Judge,  and, secondly, the judgment and order will follow the opinion  of the  third learned Judge.  It is, therefore,  manifest  that the  third  learned Judge can or will deal  with  the  whole case. The  second and the main contention of counsel for  the  ap- pellants  was  that there was no common  intention  to  kill Amarji.  The finding of fact is, ,that the attack the  three accused was a concerted one under prearranged plan.   Amarji Was attacked by mistake :but whosoever inflicted, injury  in the region of the collar-bone of Amarji must be held  guilty of  murder. under section 302.  Amarji was further found  to have been attacked by accused Nos. 1 and 2 and accused No. 3 who was armed with an axe caught hold of the hand of Pabaji. The injury on Amarji was an incised wound 1-3/4" *3/4"  over the  left side of the neck neck just above the left  collar- bone.  The direction of the wound was was towards right  and downwards.The other injury was incised (1) [1965] 2 S.C.R. 771. 36 wound 1" * 1/2" * 1/2" over the chest (right side) near  the middle line between the 6th and 7 ribs. The-  evidence establishes these features; first,  that  all the  accused were related; secondly, they were  residing  at Bhuvad at the relevant time; thirdly, all the three  accused made  sudden  appearance  on the scene  of  the  occurrence; fourthly, they started assault as soon as the carts  arrived at  the  scene  of the offence; fifthly, the  way  in  which Amarji was attacked by accused Nos.  1 and 2 and stab wounds were infficted on him and the manner in which accused No.  3 held up Pabaji would show that the three accused were  lying in wait under some pre-arranged plan to attack these persons when  they were returning to Bhalot.  It  therefore  follows that the attack took place in pursuance of the  pre-arranged plan and the rapidity with which the attacks Were made  also shows the pre-concerted plan.  The attack by accused Nos.  1 and 2 on Amarji and the holding up, of Pabaji by accused No. 3  all  prove ,common intention,  participation  and  united criminal behaviour of all and therefore accused No. 3  would be  equally responsible with ,accused Nos.  1 and 2 who  had attacked Amarji. This Court in the case of Shankarlal Kachrabhai and Ors.  v. State  of  Gujarat(1)  said that a mistake  by  one  of  the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted action in  furtherance of pre-arranged plan.  The dominant  feature of  section 34 is the ,element of participation in  actions. This  participation  need not in all cases  be  by  physical presence.   Common  intention  implies  acting  in  concert. There  is  a pre-arranged plan which is proved  either  from conduct  or from circumstances of from incriminating  facts. The principle of joint liability in the doing of a  criminal act is embodied in section 34 of the Indian Penal Code.  The existence  of  common  intention  is  to  be  the  basis  of liability.   That  is  why the prior concert  and  the  pre- arranged  plan  is  the foundation of  common  intention  to establish liability and guilt.

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Applying  these  principles to the evidence in  the  present case  it  appears that there was pre-arranged  plan  of  the accused  to commit offences.  All the accused were lying  in wait  to  attack  the party of Amarji,  Vaghji,  Pabaji  and Pachanji.   Amarji  was  in  the  forefront.   The   accused attacked  him.  Vaghji was also attacked and prevented  from going  to  the relief of Amarji.  The plea that  Amarji  was mistaken for Vaghji would not take away the common intention established  by pre-arranged plan and participation  of  all the  accused  in furtherance of common intention.   The  act might be ,done by one of the several persons in  furtherance of  the  common intention of them all, without each  one  of them having intended (1) [1965] 1 S.C.R. 287. 37 to  do the particular act in exactly the same way as an  act might  be  done  by one member of an  unlawful  assembly  in prosecution of the common intention which the other  members of the unlawful assembly did not each intend to be done. In   view  of  the  evidence  that  Amarji  was  killed   in furtherance  of the common intention of all the accused  the appellants  are guilty of murder.  ’In Shankarlal’s  case(1) this  Court said that if the common intention was to kill  A and  if  one of the accused killed B to  wreck  his  private vengeance,  it could not be possibly in furtherance  of  the common intention for which others can be liable.  But if  on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing of B  was in  furtherance  of  the common intention.   All  the  three accused in the present case were lying in wait and assaulted the driver of the first cart and stabbed him in pursuance of their  prearranged  plan- Therefore, all the  three  accused including  the appellant must share the liability of  murder under  section 302 read with section 34 of the Indian  Penal Code.   Further,  in  view  of the  finding  that  the  the- concerted plan was to cause injuries to the intended  victim with dangerous weapons with which the assailants were  lying in wait, the liability of the appellant is established. The conclusion of Mehta, J. is correct.  The appeal,  there- fore, fails and is dismissed.  The accused must surrender to the bail and serve out the sentences. R.K.P.S.                           Appeal dismissed.. (1) [1965] 1 S.C.R. 287. 38