Jana and Anr Vs. State of West Bengal
 Insc 95 (25
Arijit Pasayat & P. Sathasivam
out of SLP (Crl.) No.4664 of 2007) Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of the Division Bench of Calcutta
High Court which confirmed conviction of the appellants while directing
acquittal of twelve co-accused persons. Originally, 20 persons including the
present appellants faced trial for offence punishable under Sections 148, 323,
324 and 307 read with Section 149 of the Indian Penal Code, 1860 (in short
IPC). After recording evidence the Trial Court acquitted six persons
under Section 232 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.)
and the rest 14 were convicted.
Prosecution version in a nutshell is as follows:
information report was lodged by one Hrishikesh Jana on 17.1.1992, stating that
on 17.1.1992 in the morning when said Hrishikesh Jana was busy in the field for
cultivation of his land, the appellants under the leadership of appellant Sachin
Jana forming an unlawful assembly and being armed with different weapons like
bombs, sticks, knives, iron rods and bottle of acid threatened Hrishikesh Jana
with dire consequences and when Hrishikesh Jana did not oblige them by leaving
the work of cultivation, the accused persons started assaulting him with blows,
kicks, iron rods etc. and acid was also poured on his face and body. Hrishikesh
Jana alleged in his written complaint that the appellants also poured acid on
one Amulya Giri and Kartick Maity and also assaulted one Sabitri Giri who came
forward to save Hrishikesh Jana. After completion of investigation charge sheet
was filed. Accused persons pleaded false implication.
order to further its version the prosecution examined 11 witnesses including
the informant Hrishikesh Jana and injured persons Amulya Giri, Kalipada Maity.
The accused persons examined three persons to contend that the prosecution was
not projecting the correct scenario. The Trial Court after considering the
evidence came to the conclusion that on 17th January, 1992 Sachin Jana and remaining
appellants, after forming an unlawful assembly assaulted him when Amulya (PW2),
Kartick (PW3) and Sachin came to rescue Hrishikesh. The accused persons shared
common intention and also poured acid on the person of Amulya and assaulted.
Fourteen persons were found guilty of offence punishable under Section 307 IPC
and each was sentenced to ten years imprisonment and fine of Rs.2,000/- with
sentences were also imposed for the other offences.
Trial Court primarily relied on the evidence of PWs. 1, 2 and 3 who were
claimed to be victims of acid pouring. The High Court in appeal found that the
evidence of PWs. 1, 2 and 3 clearly established the guilt of the appellants,
but was not sufficient to convict the 12 co-accused persons. Accordingly, the
appeal so far it relates to the present appellants was dismissed. But the
conviction was altered to Section 307/34 IPC.
support of the appeal, learned counsel for the appellants submitted that the
case was one of false implication. In any event, offence under Section 307 IPC
is not made out and the sentence as imposed is clearly excessive.
is also submitted that Section 34 IPC has no application.
is to be noted that three persons suffered injuries on account of acid poured
on them. The doctor had indicated that each of the injured persons suffered
more than 50% burn injury which was caused due to acid and the same was
sufficient to cause death if not attended by medical aid at appropriate time.
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
The section does not say the common intentions of all20;, nor does it
say an intention common to all20;. 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.
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) 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
The above position was highlighted in Girija Shankar vs. State of U.P. (2004 (4) SCC 793).
Section 307 IPC reads:
Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of
murder, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine; and if hurt is
caused to any person by such act, the offender shall be liable either to
imprisonment for life, or to such punishment as is hereinbefore mentioned.20;
To justify a conviction under this section, it is not essential that bodily
injury capable of causing death should have been inflicted. Although the nature
of injury actually caused may often give considerable assistance in coming to a
finding as to the intention of the accused, such intention may also be deduced
from other circumstances, and may even, in some cases, be ascertained without
any reference at all to actual wounds. The section makes a distinction between
an act of the accused and its result, if any. Such an act may not be attended
by any result so far as the person assaulted is concerned, but still there may
be cases in which the culprit would be liable under this section. It is not
necessary that the injury actually caused to the victim of the assault should
be sufficient under ordinary circumstances to cause the death of the person
assaulted. What the court has to see is whether the act, irrespective of its
result, was done with the intention or knowledge and under circumstances
mentioned in the section.
attempt in order to be criminal need not be the penultimate act. It is
sufficient in law, if there is present an intent coupled with some overt act in
This position was highlighted in State of Maharashtra v. Balram Bama Patil (1983 (2) SCC 28).
When the evidence on record is analysed, it is clear that Section 307 read with
Section 34 IPC has clear application.
acid burns caused disfigurement.
Considering the nature of dispute the custodial sentence is reduced to 5 years.
However, each of the appellants is directed to pay a fine of Rs.25,000/-. If
the amount is deposited by the appellants within six weeks from today, out of
each deposit, Rs.10,000/- shall be paid to each of the victims PWs. 1, 2 and 3.
In case the amount of fine imposed is not deposited, the default custodial
sentence of one year each.
The appeal is disposed of accordingly.