Ram and Another Vs. State of U.P.  Insc
1252 (11 December 2007)
Arijit Pasayat & Aftab Alam
APPEAL NO. 1695 OF 2007 (Arising out of SLP (Crl.) No.5400 of 2005) Dr. ARIJIT
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.
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
conviction was recorded by IV learned Additional Sessions Judge, Pillibhit, in
Sessions Trial No. 249 of 1980.
Prosecution version as unfolded during trial is as follows:
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;
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.
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.
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.
details were entered in the G.D., a copy of which is Ex.Ka.
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.
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.
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.
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.
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.
support of the appeal learned counsel for the appellant submitted that even if
prosecution version is accepted in totality, offence under Section 302 is not
made out, much less by application of Section 34 IPC.
Learned counsel for the respondentState supported the judgment of the High
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.
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.
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.
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.
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
above position was highlighted in Girija Shankar v. State of U.P. [2004(3) SCC 793].
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.
The appeal is without merit and is dismissed.