Ram Vs. State of Rajasthan
 Insc 706 (20 June 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
Dr. ARIJIT PASAYAT, J.
1. Three appellants before the Rajasthan High Court alongwith one Giluda
faced trial for alleged offence under Section 302 read with Section 34 of the
Indian Penal Code (in short the 'IPC'). A Division Bench of the Rajasthan High
Court Jaipur Bench directed acquittal of the Giluda and upheld the conviction
so far as the appellants before it are concerned.
Each one of them was found guilty of offence punishable under Section 302
read with Section 34 IPC and was sentenced to undergo imprisonment for life. 23
persons were named in the First Information Report (in short the 'FIR') but
after investigation police filed charge sheet against seven of them. The
appellants before High Court along with three others, namely, Babu Ram, Raghuveer
and Kailash faced trial.
Said Babu Ram, Raghuveer and Kailash were acquitted by the trial court. Each
of the appellants was sentenced to undergo imprisonment for life each to pay
fine about Rs.1,000/- with default stipulation. Only the present appellant has
questioned legality of the judgment of the High Court.
2. Background facts in a nutshell are as follows:
On 1.4.2000 at 4.30 p.m. First Information Report (in short the 'FIR') with
regard to the incident came to be lodged on the same day at 7.30 p.m. by Bhonr Singh, brother of deceased Prabhu and Reghuveer. It was a written report on the
basis of which formal FIR came into being. Bhonr Singh in the FIR lodged by him
stated that between 4 to 5 in the evening on 1.4.2000, his brother Prabhu and Raghuveer
were coming back from Thanagazhi after attending hearing of a case. When they
were going from Mandawara to Talvriksha, on the outskirts of the village,
because of personal enmity, Girdhari son of Dola Ram Rebari, Hanuman, Lala and
their younger brother's sons of Girdhari Rebari, Tulsa wife of Girdhari, Hardeva,
Giluda, Gopal, Shimbhu sons of Hardeva, Santi wife of Hardeva and Hardeva
himself, Ramjilal, Manaram, Pancha, Yada sons of Bhora Jat, Prabhu, Maharam
sons of Shankar and relations of Girdhari Rebari whose names he did not know, Dholi
wife of Sunda Ram, Sundaram and his four sons started beating Prabhu and Raghuveer
with lathis, farsi, Jell etc. and injured them. At the spot, the occurrence was
witnesses by Ranveer, son of Dilip Singh, Hanuman, son of Gangaram, Girvar
Singh, son of Mukhram Singh, Bhima, son of Mukhram, Harinarain Gujar and Ramniwas,
sons of Phoola Gujar. He was taking bath in Talviksha when the occurrence had
taken place. He was told about this occurrence by Sugla Dhankar who told him
that above named persons had beaten his brothers. He then straightway went to
lodge the report.
3. After completion of investigation charge sheet was filed.
Accused persons pleaded innocence.
4. Placing reliance on the evidence of PWs. 3 & 4 the trial court
recorded conviction of the appellant and others, while directing acquittal of Giluda.
It is to be noted that before PW 3- the deceased persons purportedly made dying
declaration while PW4 was stated to be an eye witness. The High Court found
that the evidence of PW 3 to be relevant as he is the person who saw the
deceased persons in injured condition and gave water to them while they were
gasping for breath. So far as PW 4 is concerned he was related to the deceased
persons and, therefore, the Court analysed his evidence in detail and found it
to be credible.
5. In support of the appeal, learned counsel for the appellant submitted
that the evidence of PWs 3 & 4 cannot be called credible and cogent. PW 4
was related to the deceased.
There was no reason as to why the deceased would make any disclosure to PW 3
about the assailants. Further, Section 34 has no application. Learned counsel
for the State supported the judgment.
6. There is no proposition in law that relatives are to be treated as
untruthful witnesses. On the contrary, reason has to be shown when a plea of
partiality is raised to show that the witnesses had reason to shield actual
culprit and falsely implicate the accused. No evidence has been led in this
7. 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 mind 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 moment; but it must
necessarily be before the commission of the crime. The true contents of the
Section are 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 (AIR 1977 SC 109), 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.
8. As it originally stood, Section 34 was in the following terms:
"When a criminal act is done by several persons, each of such persons
is liable for that act in the same manner as if the act was done by him
9. In 1870, it was amended by the insertion of the words "in
furtherance of the common intention of all" after the word
"persons" and before the word "each", so as to make the
object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor
(AIR 1945 Privy Council 118).
10. The Section does not say "the common intention of all", nor
does it say "and 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 Ch. Pulla Reddy and Ors. v. State of Andhra
Pradesh (AIR 1993 SC 1899), 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.
11. The above position was highlighted recently in Anil Sharma and Others v.
State of Jharkhand [2004 (5) SCC 679], in Harbans Kaur v. State of Haryana
[2005(9) SCC 195] and Amit Singh Bhikamsingh Thakur v. State of Maharashtra
[2007(2) SCC 310].
12. If the factual scenario as noted above is considered in the background
of legal principles set out above, the inevitable conclusion is that Section 34
has been rightly applied.
13. So far as PW 3 is concerned he was the person who gave water to the
deceased while he was gasping for breath and only he lent helping hand and
tried to find out how the injuries were sustained. The deceased persons told
the witness that they were given beatings near the temple of Peerji on the
road. He was also told who the assailants were. In that view of the matter the
judgment and conviction of the High Court does not suffer from any infirmity to
14. We record our appreciation for the able manner in which Mr. Shakeel
Ahmed, learned Amicus Curiae assisted the Court.
15. Appeal stands dismissed.