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

PETITIONER: SHANKARLAL KACHRABHAI AND OTHERS

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT: 21/09/1964

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SHAH, J.C. SIKRI, S.M.

CITATION:  1965 AIR 1260            1965 SCR  (1) 287  CITATOR INFO :  R          1970 SC1266  (13,15)

ACT: Indian  Penal  Code  (Act  45 of  1860),  ss.  34,  301  and 302--Scope of--"Criminal act" in s. 34, meaning of.

HEADNOTE: Where  four persons shot at the deceased with the  intention of killing him but under a misapprehension that he was  some one  else they could be found guilty of an offence under  s. 302  of the Indian Penal Code, read with s. 34 of the  Code. It would be a case of killing the deceased in furtherance of their  common intention to kill the other, and  there  would not  be any necessity to invoke s. 301 of the Code  to  find them guilty.  In fact that section would apply only to cases where  there  was,  no  intention to  cause  the  death,  or knowledge  that  death  was  likely to  be  caused,  of  the deceased. [291D-E, H; 292A-B]. Barendra Kumar Ghosh v. Emperor, L.R. 52 I.A. 40 and  Mahbub Shah v. King Emperor, L.R. 72 I.A. 148 referred to.

JUDGMENT:   CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  191 of 1962. Appeal  by special leave from the judgment and  order  dated April  9,  10 and 12 of 1962 of the Gujarat  High  Court  in Criminal Appeal No. 426 of 1961.      A.   S. R. Chari, and R. A. Gagrat, for the appellants.    H.     R. Khanna, R. H. Dhebar and B. R. G. K. Achar, for the respondent. The Judgment of the Court was delivered by Subba  Rao  J.  This  appeal  by  special  leave  raises  an interesting  question involving the construction of  s.  34, read with s. 301 of the Indian Penal Code. The  appellants who are 11 in number were accused Nos. 1  to 10  and 12 in the Sessions Court, Mehsana.  The case of  the prosecution  may be stated thus : In the village  of  Aithor there are about 300 houses of Kadva Patidars and about 15 to 20 houses of Leva Patidars.  On January 16, 1961, at about 8

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

P.m. seven persons, who are Leva Patidars, came to the chowk where  there is a pan shop cabin of Girdhar Shanker.   These seven  persons were, Rama Bhupta, Lakha Madha,  Hira  Punja, Jetha  Nagar,  Parshottam  Prabhuva, Manor  Madha  and  Gova Shiva.   At the same-time the 12 accused also came  to  that place.  Accused 1 to 6 were each armed with a muzzle loading gun; accused 7, 288 8,  11 and 12 were armed with sticks; accused 9 and 10  were armed  with  dharias.  Accused I to 4 fired their  guns  and Rama Bhupta fell down and died near the door of the cabin of Girdhar.   Accused 5 and 6 fired their guns and Lakha  Madha was injured.  Accused I fired his gun again and Jetha  Nagar received  injuries.   Accused 5 and 6 fired again  and  Hira Punja was injured.  Accused 7 to 12 were inciting accused  1 to  6 to kill all these persons.  Other specific  acts  were attributed  to  some of the accused.  The  learned  Sessions Judge  held that Rama Bhupta was killed as a result  of  the firing  by accused 1 to 4, that Lakha Madha was  injured  by the firing by accused 5 and 6, that Jetha Nagar was  injured by  the firing by accused 1, that Hira Punja was injured  by the firing by accused 5 and 6, that accused 12 caused  stick injuries  to Lakha and that accused 8 caused injury  on  the tongue of Parshottam Prabhuva.  The Sessions Judge also held that  the 12 accused constituted an unlawful  assembly,  but their common intention was not to kill Rama Bhupta but  only Madha  who was not present in the chowk.  He  acquitted  all the  accused under S. 302, read with S. 149, of  the  Indian Penal Code, but convicted accused I to 4 under s. 302,  read with  S. 34, of the Indian Penal Code and sentenced them  to imprisonment  for life and to a fine of Rs. 2,000 each;  lie convicted all the accused under s. 324, read with S. 149, of the Indian Penal Code for causing injuries to Hira Punja and others.   Accused 5 to 12 were also convicted under S.  326, read with S. 34, and s. 324, read with s. 149 and s. 148, of the  Indian  Penal Code and they were sentenced  to  various periods  of  imprisonment and fine.  The  accused  preferred different  appeals against their convictions  and  sentences and the State of Gujarat filed appeals against the acquittal of  accused 5 to 12 under S. 302, read with s. 149,  of  the Indian  Penal  Code.   The State of  Gujarat  also  filed  a criminal revision for enhancing sentences passed against all the  accused,  but it did not file any  appeal  against  the acquittal of accused I to 4 on the charge under s. 302, read with  s.  149,  of the Indian Penal Code.   The  High  Court convicted accused I to 4 under s. 302, read with ss. 301 and 34,  of the Indian Penal Code and confirmed the sentence  of life  imprisonment  passed on them, but set aside  the  fine imposed on them.  So far as the other accused i.e.,  accused 5  to 12, are concerned, they were convicted under  s.  302, read with ss. 301 and 34, of the Indian Penal Code and  also under  s. 302, read with S. 149, of the said Code.   In  the result,  the  High  Court  sentenced  all  the  accused   to imprisonment for life for the said offences. 289    It is common case that if the conviction of accused 1  to 4  tinder s. 302, read with s. 34 and s. 301, of the  Indian Penal Code, was set aside, all the accused would have to  be acquitted  in regard to the major offences.  It is also  not disputed that if the conviction of accused I to 4 under  the said  sections was confirmed, the appeal filed by the  other accused  would  fail.   The  only  question,  therefore,  is whether the conviction of accused I to 4 under s. 302,  read with ss. 34 and 301, of the Indian Penal Code, was correct.    In  the  appeal  Mr.  Chari,  learned  counsel  for   the

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

appellants,  contends  that  accused I to  4  could  not  be convicted under s. 302, read with s. 34, of the Indian Penal Code,  as  there was no common intention to kill  Rama,  but Rama  was  killed under the mistake that he was Madba.  l  A mistake  by  one  or  other of  the  accused,  the  argument proceeds,  cannot possibly be "in furtherance of the  common intention"  of  the  accused.  He further  argues  that  the provisions  of  s. 301 of the Indian Penal  Code  cannot  be invoked in the circumstances of the case.    To  appreciate  the argument of the  learned  counsel  it would  be  convenient  at this stage  to  note  exactly  the finding given by the High Court.  The High Court found  that the common intention of the accused was to kill Madha,  that accused 1 to 4 shot at Rama mistaking him for Madha, as Rama had  dressed himself in the habiliments similar to those  in which  Madha  used  to dress  himself  and,  therefore,  the accused  shot at Rama under the mistaken belief that be  was Madha.  Section 34 of the Indian Penal Code reads               "When  a  criminal  act  is  done  by  several               persons,   in   furtherance  of   the   common               intention  of  all, each of  such  persons  is               liable  for that act in the same manner as  if               it were done by him alone."      Section   34  was  subject  of  judicial   scrutiny   in innumerable  cases.  The expression "in furtherance  of  the common  intention of all" was not in the  original  section, but  was  inserted in the section by S. 1 of  Act  XXVII  of 1870.   The  Judicial Committee in Barendra Kumar  Ghosh  v. Emperor(1) defined the expression "criminal act" in the said section thus:               "A  criminal  act means that  united  criminal               behaviour which results in something for which               an individual               (1) (1924) I.L.R. 52 Cal. 197 (P.C.) : L.R. 52               I.A. 40               290   would be punishable if it were all  done               by  himself  alone,that  is,  in  a   criminal               offence."   The     Judicial   Committee  in  Mahbub  Shah  v.   King- Emperor(1) laid     down  the following ’conditions for  its application:               "To  invoke the aid of s. 34 successfully,  it               must be shown that the criminal act complained               against was done by one of the accused persons               in the furtherance of the common intention  of               all; if this is shown, then liability for  the               crime may be imposed on any one of the persons               in the same manner as if the act were done  by               him  alone.  This being the principle,  it  is               clear to their Lordships that common intention               within  the meaning of the section  implies  a               pre-arranged plan, and to convict the  accused               of  an offence applying the section it  should               be  proved that the criminal act was  done  in               concert pursuant to the pre-arranged plan.  As               has  been often observed, it is difficult,  if               not impossible, to procure direct evidence  to               prove the intention of an individual; in  most               cases  it has to be inferred from his  act  or               conduct or other relevant circumstances of the               case."    It  is, therefore, clear that the criminal act  mentioned in  s.  34  of the Indian Penal Code is the  result  of  the concerted action of more than one person; if the said result was  reached  in furtherance of the common  intention,  each

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

person  is  liable  for  the result as if  he  had  done  it himself.   The  question  is  what is  the  meaning  of  the expression  "in furtherance, of the common intention".   The dictionary meaning of the word "furtherance" is "advancement or  promotion".  If four persons have a common intention  to kill  A,  they  will have to do many acts  in  promotion  or prosecution  of  that design in order to fulfill  it.   Some illustrations  will clarify the point.  Four persons  intend to  kill A, who is expected to be found in a house.  All  of them participate in different ways.  One of them attempts to enter the house, but is stopped by the sentry and he  shoots the sentry.  Though the common intention was to kill A,  the shooting of the sentry is in furtherance of the said  common intention.   So s. 34 applies.  Take  another  illustration. If  one  of  the  said accused enters  the  room  where  the intended victim usually sleeps, but somebody other than  the intended  victim is sleeping in the room, and on a  mistaken impression he shoots him.  The shooting of the wrong man  is in furtherance of the common intention and so S. 34 applies. Take (1)  L.R. 72 I.A. 148, 153. 291 a third variation of the illustration.  The intended  victim has a twin brother who exactly resembles him and the accused who  is  entrusted with the part of  shooting  the  intended victim,  on a mistaken impression, shoots the twin  brother. The  shooting of the twin brother is also in furtherance  of the  common  intention.  Here also s. 34 applies.   If  that much  is  conceded we do not see any justification  why  the killing  of another under a mistaken impression of  identity is  not in furtherance of the common intention to  kill  the intended  victim.   When the accused were shooting  at  Rama believing  him  to  be Madha, they were  certainly  doing  a criminal  act in furtherance of the common  intention  which was  to kill Madha.  They killed Rama because they  believed that they were shooting at Madha.  Mr. Chari argues, how can a mistake committed by one of the accused be in  furtherance of  a  common intention ? For it is said that  to  commit  a mistake  was  not  a part of the  common  intention  of  the accused.   But the question is not, as we have pointed  out, whether the committing of a mistake was a part of the common intention,  but  whether it was done in furtherance  of  the common intention.  If the common intention was to kill A and if  one  of  the accused kills B to wreak  out  his  private vengeance,  it  cannot  possibly be in  furtherance  of  the common intention for which others can be constructively made liable.   But,  on the other hand if he kills  B  bona  fide believing  that  he is A, we do not see any  incongruity  in holding  that  the  killing of B is in  furtherance  of  the common intention.  We, therefore, hold that without the  aid of s. 301 of the Indian Penal Code it can be held that  when accused I to 4 shot at Rama they shot at him in  furtherance of their common intention to kill Madha. Now let us see the impact of S. 301 of the Indian Penal Code on s. 34 thereof.  Section 301 reads:               "If  a  person,  by doing  anything  which  he               intends or knows to be likely to cause  death,               commits culpable homicide by causing the death               of any person, whose death he neither  intends               nor  knows himself to be likely to cause,  the               culpable homicide committed by the offender is               of the description of which it would have been               if he had caused the death of the person whose               death he intended or knew himself to be likely               to cause."

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

This section deals with a different situation.  It  embodies what  the  English  authors  describe  as  the  doctrine  of transfer  of malice or the transmigration of motive.   Under the section if A intends to kill B, but kills C whose  death he neither intends nor knows himself to be likely to  cause, the intention to kill C is by law 292 attributed to him.  If A aims his shot at B, but it misses B either  because  B  moves out of the range of  the  shot  or because the shot misses the mark and hits some other  person C, whether within sight or out of sight, under S. 301, A  is deemed  to have hit C with the intention to kill him.   What is  to  be noticed is that to invoke s. 301  of  the  Indian Penal Code A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of  C. In  the  instant case this condition is not  complied  with. The  accused shot at a particular person with the  intention of  killing  him  though  under  a  misapprehension  of  his identity.  In that case, all the ingredients of ss. 299  and 300 of the Indian Penal Code are complied with.  The aid  of s. 301 of the Indian Penal Code is not called for.  We  are, therefore,  of the opinion that s. 301 of the  Indian  Penal Code has no application to the present case.    For  the foregoing reasons we hold that all  the  accused are  liable  under s. 302, read with s. 34,  of  the  Indian Penal  Code.   If we reach this conclusion, it  is  conceded that no other point arises in this appeal.  The appeal fails and is dismissed. Appeal dismissed. 293