REPORTABLE  

 IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No.        OF 2008  (Arising out of SLP(Crl.) No. 7034/2008)        

LAXMANJI & ANR. ...   Appellant(s)                         Versus    STATE OF GUJARAT ...  Respondent(s)

J U D G M E N T

Dr.ARIJIT PASAYAT,J.

Leave granted.

Challenge in this appeal is to the judgment of the Division Bench of the Gujarat

High Court upholding the conviction of the accused appellant nos. 1 to 3.  Four persons

faced trial and the trial court directed acquittal of accused No. 4.  All the accused persons

were charged for commission of offence punishable under Section 302 read with Section

34 of the Indian Penal Code, 1860 ( in short 'IPC').  Three appeals were filed before the

High Court.  Two of them were by    accused No. 1 (Criminal Appeal No. 259/99) and the

other Criminal Appeal  No.  301  of  1999  by accused nos.  2  and 3.   Criminal Appeal

380/1999 was preferred by the State questioning acquittal of original accused No. 4.  

The prosecution version as unfolded during trial is as follows:

On  26/10/1997,  at  around  15.30  hours,  Nainaben,daughter  of  deceased

-Bhamraji, had  gone to  fetch water from a nearby

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public tap.  As there was no supply of water in the said tap at the relevant point of time,

Nianaben  went  to  the  house  original  accused  No.  3,  which  was  situated  in  the

neighbourhood of  her house,  to  fetch the same.  While Nainaben was fetching water,

original  accused  Nos.  1,2  and  3  and  some  other  persons  began  to  tease  Nainaben.

Therefore, Nainaben returned to her house.

After returning to her house, Nainaben informed about the said incident to her

father deceased Bhamarji.  As a result thereof, the deceased-Bhamraji went to the house

of original accused No. 3 and warned them not to repeat such thing in future.  Thereafter,

the deceased left the house of original accused No. 3.

Sometime later, all the four accused persons went to the house of deceased-

Bhamraji and during that time, original accused No. 1 was having a “Rampuri” -knife,

original accused No. 4 was having a stick while the two other accused persons, i.e. original

accused Nos. 2 and 3, were unarmed.  Original accused Nos. 2 and 3 caught hold of the

deceased while original accused No. 1, who was having a knife, inflicted knife blows on the

right hand side region of the abdomen as also the thigh region of the deceased.  As a result

thereof, the deceased fell down and all the accused persons fled the scene of offence.

Thereafter, the deceased was taken to Sardarnagar Police Station in an Auto-

rickshaaw.  At that time, the P.S.I.  of Sardarnagar Police Station, Kanaksing Bhulabhai

Rathod, advised that the deceased be taken to the Civil Hospital, Ahmedabad for

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necessary treatment.  Accordingly, the deceased was taken to Civil Hospital, Ahmedabad,

where he was given necessary treatment.

On the basis of information given case was registered for offence punishable

under Section 326 read with Section 34 IPC.  Subsequently the dying declaration of the

deceased was sought to be recorded. But before the dying declaration could be recorded

the deceased succumbed to injuries on 27.10.1997. Therefore Section 302 IPC was added

to the complaint.  After investigation, charge sheet was filed.  Since the accused persons

abjurd guilt, trial was held.  The trial court believed the evidence placed on record and

convicted the accused nos. 1, 2 and  3 while directed acquittal of accused No. 4.  As noted

above three appeals were filed before the High Court.

The High Court dismissed all the appeals.   When the matter was placed for

grant of leave to file appeal, the petition was dismissed qua Chandan singh accused No. 1.

Therefore present appeal relates to other two accused persons.  Learned counsel for the

appellants submitted that A 2 was not armed. It is therefore submitted that the appellant

cannot be held guilty of offence punishable under Section 302 read with Section 34 IPC.

Learned counsel for the State on the other supported the judgment.  

The  basic  question  arises  for  consideration is  whether Section  34  can be

applied so far as the appellants are concerned.

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The factual scenario as noted above goes to show that the appellant cannot be

attributed any common intention to cause the murder of the deceased.  In order to bring a

case under Section 34 it is not necessary that there must be a prior conspiracy or pre-

meditation. The common intention can be formed in the course of occurrence.  To apply

Section 34 apart from the fact that there should be two or more accused, two factors must

be established :(i) common intention and (ii) participation of accused in the commission of

an offence.  If common intention is proved but no overt act is attributed to the individual

accused,  section 34 will be attracted as essentially it involves vicarious liability. But  if

participation of the accused in the crime is proved and common intention is absent, section

34 cannot be invoked. (See  Jai Bhagwan  VS. State of Haryana, AIR 1999 SC 1083).

In the background facts, the appropriate conviction would be Section 326 read

with Section 34 IPC.  Custodial sentence of three years would meet the ends of justice.

The appeal is allowed with the above observation.

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

               .....................J.                            (Dr. MUKUNDAKAM SHARMA)

New Delhi, December 5, 2008.