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CASE NO.: Appeal (crl.)  1695 of 2007

PETITIONER: Sewa Ram and Another

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 11/12/2007

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1695        OF 2007 (Arising out of SLP (Crl.) No.5400 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.    Challenge in this appeal is to the judgment rendered by a  Division Bench of the Allahabad High Court dismissing the  appeal filed by the appellants.  Before the High Court three  persons had filed the appeal. During the pendency of the  appeal, appellant no.2 Ram Prasad died.  Therefore, the appeal  was held to have abetted so far he is concerned.       3.      The appellants were found guilty of having committed an  offence punishable under Section 302 read with Section 34 of  the Indian Penal Code, 1860 (in short ’IPC’) and each was  sentenced to undergo imprisonment for life. Appellant-Sewa  Ram and the deceased-accused Ram Prasad were further  convicted for offence punishable under Section 323 read with  Section 34 IPC and each was sentenced to undergo RI for six  months and to pay a fine of Rs.500/- with default stipulation.     

4.      The conviction was recorded by IV learned Additional  Sessions Judge, Pillibhit, in Sessions Trial No. 249 of 1980.

5.      Prosecution version as unfolded during trial is as follows:

       The complainant Shaukat Ali, son of Nathu Bux, resident  of Barhara, P.S. Bisalpur, was doing service at the house of  Jagan Nath, Prasad resident of village Chandpura who was   related to Smt. Genda Devi, widow of Jwala Prasad Kurmi,  resident of Naugamia, P.S. Bilsanda, who is hereinafter  referred to as the ’deceased’. Litigation was going on between  Smt. Genda Devi and her step daughter Smt. Savitri Devi, who  was living as wife of Ram Prasad of village Naugamia. On  22.8.1980, the complainant Shaukat Ali along with Jagan  Nath and Smt. Genda Devi had gone to Tehsil Bisalpur in  connection with the litigation and they were returning from  Tehsil to village Chandpura at about 4 0 ’clock and when they  reached the outskirts of village Kangawan near the sugar cane  field of Babuji at 6 ’0 clock Smt. Genda Devi was going ahead;  behind her was the complainant and behind him was Jagan  Nath. Suddenly accused Ram Prasad, Sewa Ram and   Parmeshwari having ’Lathis’ in their hands and accused  Sunder Lal having ’Kanta’ in his hand suddenly came out from  the sugar cane field and began to beat Smt. Genda Devi on  which the complainant and Jagan Nath cried for help.  

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Accused Ram Prasad and Sewa Ram then beat the  complainant with ’Lathis’. The complainant and Jagan Nath  ran away towards the village Kangavan and the accused ran  away towards east. The complainant and Jagan Nath saw Smt.  Genda Devi and found that she had died in the paddy field.  The accused persons had murdered Smt. Genda Devi due to  enmity of litigation. Thereafter the complainant informed the  residents of village Chandpura and the ’Chaukidar’, Pradhan  and other people of the village, who came with the  complainant to the spot. It had fallen dark and due to fear, he  at once did not come to the police station to lodge the F.I.R.  and remained sitting the whole night looking after the dead  body. In the next morning on 23.8.1980, the complainant  lodged the F.I.R.(Ex. Ka. 3) at the Bisalpur police station. The  crime was registered as crime No. 247 under Sections  302/323 I.P.C. at the Bisalpur police station and the S.O. Ram  Lakhan Singh was entrusted with the investigation of the case.  The details were entered in the G.D., a copy of which is Ex.Ka.  4.  The I.0. along with the S.I. Sahabdin arrived at the spot  and prepared inquest report (Ex. Ka. 8) of the dead-body of  Smt. Genda Devi. The dead-body was sealed and sample seal  was preserved, which is Ex. Ka. 11. The I.0. made spot  inspection and prepared the site-plan Ex. Ka. 5. The post  mortem of the dead-body of Smt. Genda Devi was conducted  by Dr. V.P. Agarwal. The complainant Shaukat Ali who  received injuries was also examined at the P.H.C. Bisalpur. His  injury report is Ex. Ka.1. After completion of the investigation,  the I.0. submitted charge-sheet against the accused persons. Finding a prima-facie case against the accused persons,  they were charged under Section 302 read with Section 34  I.P.C. and Section 323 read with Section 34 I.P.C. The charges  were read over and explained to the accused persons who  pleaded not guilty and claimed to be tried.

In support of the prosecution version Shaukat Ali,  (P.W.1), Dr. C.K. Chaturvedi (PW2) who conducted the medical  examination of Shaukat Ali and Jagan Nath(P.W.3), Dr. V.P.  Agarwal, (PW 4) who conducted post mortem of the deceased  Smt. Genda Devi, A.C. Pancham Singh (PW 5), Constable  Rampal Sharma, (PW 6) and  S.I. Ramlakhan Singh (PW 7)  who conducted investigation were produced. The accused were  examined who denied the allegations and contended that they  have been falsely implicated in this case due to enmity.

6.        Shaukat Ali the informant (PW1) and Jagan Nath (PW- 3) claimed to be eye-witnesses.  The trial Court relying on the  version of the eye-witnesses recorded conviction and imposed  sentenced as aforesaid.  Before the High Court the stand was  that there was inordinate delay in dispatching special report  to the Magistrate. In addition, it was submitted that the  doctor who conducted the post-mortem noticed seven injuries  and out of them three were incised wounds and injury 3, 4, 5,  and 7 were lacerated wounds. It was submitted that the three  accused persons who preferred appeal before the High Court  were holding lathies and the Kanthi was held by Sewa Ram  who had been acquitted.  Therefore, it was submitted that  offence under Section 302 IPC was not made out.

7.      The case of the prosecution was that in view of the  factual background offence punishable under Section 302  read with Section 34 IPC is made out. The High Court, as  noted above, dismissed the appeal filed by the appellants.

8.      In support of the appeal learned counsel for the appellant  submitted that even if prosecution version is accepted in

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totality, offence under Section 302 is not made out, much less  by application of Section 34 IPC.  

9.      Learned counsel for the respondent\026State supported the  judgment of the High Court.      

10.     As rightly held by the High Court the evidence of the eye- witnesses PWs 1 and 3 suffered from no infirmity.  The trial  Court was, therefore, justified in convicting and holding  appellants guilty.   

11.     So far as the question as to whether Section 302 will be  applied so far as appellants are concerned, it is to be noted  that the trial Court and the High Court considered their cases  in the background of Section 34 IPC. 12.     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  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 minds 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 the  moment; but it must necessarily be before the commission of  the crime. The true concept of the 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  [1977(1) SCC 746] 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.  13.      The section does not say "the common intentions of all",  nor does it say "an 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 Chinta Pulla Reddy v. State of A.P. [1993 Supp.(3)  SCC 134].  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.  14.     The above position was highlighted in Girija Shankar v.

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State of U.P. [2004(3) SCC 793]. 15.     When the factual background is considered in the light of  the principles highlighted above, the inevitable conclusion is  that the appellants have been rightly convicted in terms of  Section 302 read with Section 34 IPC.  

16.      The appeal is without merit and is dismissed.