Rai & Ors Vs. State of Bihar  Insc
474 (14 November 2002)
C. Banerjee & B.N. Agrawal. Banerjee,J.
decades ago, the Constitution Bench in Mohan Singh (Mohan Singh v. State of
Punjab 1962 Supp. (3) SCR 848) has been rather lucid in its expression as
regards differentiation between Section 149 and Section 34 of the Indian Penal
Code. In Mohan Singh this Court stated :
Like Section 149, Section 34 also deals with cases of constructive criminal
liability. It provides that where 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. The essential constituents
of the vicarious criminal liability prescribed by Section 34 is the existence
of common intention. If the common intention in question animates the accused
persons and if the said common intention leads to the commission of the
criminal offence charged, each of the persons sharing the common intention is constructively
liable for the criminal act done by one of them. Just as the combination of
persons sharing the same common object is one of the features of an unlawful
assembly, so the existence of a combination of persons sharing the same common
intention is one of the features of Section 34. In some ways the two sections
are similar and in some cases they may overlap. But, nevertheless, the common
intention which is the basis of Section 34 is different from the common object
which is the basis of the composition of an unlawful assembly. Common intention
denotes action-in- concert and necessarily postulates the existence of a
pre-arranged plan and that must mean a prior meeting of minds. It would be
noticed that cases to which Section 34 can be applied disclose an element of
participation in action on the part of all the accused persons. The acts may be
different; may vary in their character, but they are all actuated by the same
common intention. It is now well-settled that the common intention required by Section
34 is different from the same intention or similar intention. As has been
observed by the Privy Council in Mahbub Shah v. Emperor (1945 L.R. 72 I.A.
148), common intention within the meaning of Section 34 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 and that the inference of common intention should never be
reached unless it is a necessary inference deducible from the circumstances of
the case." Four decades later, however, a Three-Judge Bench of this Court
in Suresh (Suresh & Anr. v. State of U.P. 2001 (3) SCC 673) had the
following to state pertaining to Section 34 of the Indian Penal Code.
34 of the Indian Penal Code recognises the principle of vicarious liability in
criminal jurisprudence. It makes a person liable for action of an offence not
committed by him but by another person with whom he shared the common
intention. It is a rule of evidence and does not create a substantive offence.
The Section gives statutory recognition to the commonsense principle that if
more than two persons intentionally do a thing jointly, it is just the same as
if each of them had done it individually. There is no gainsaying that a common
intention presupposes prior concert, which requires a prearranged plan of the
accused participating in an offence. Such preconcert or preplanning may develop
on the spot or during the course of commission of the offence but the crucial
test is that such plan must precede the act constituting an offence. Common
intention can be formed previously or in the course of occurrence and on the
spur of the moment. The existence of a common intention is a question of fact
in each case to be proved mainly as a matter of inference from the
circumstances of the case.
dominant feature for attracting Section 34 of the Indian Penal Code
(hereinafter referred to as "the Code") is the element of
participation in absence resulting in the ultimate "criminal act".
The "act" referred to in the later part of Section 34 means the
ultimate criminal act with which the accused is charged of sharing the common
intention. The accused is, therefore, made responsible for the ultimate
criminal act done by several persons in furtherance of the common intention of
all. The section does not envisage the separate act by all the accused persons
for becoming responsible for the ultimate criminal act. If such an
interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
in the crime in furtherance of the common intention cannot conceive of some
independent criminal act by all accused persons, besides the ultimate criminal
act because for that individual act law takes care of making such accused
responsible under the other provisions of the Code.
word "act" used in Section 34 denotes a series of acts as a single
act. What is required under law is that the accused persons sharing the common
intention must be physically present at the scene of occurrence and be shown
not to have dissuaded themselves from the intended criminal act for which they
shared the common intention. Culpability under Section 34 cannot be excluded by
mere distance from the scene of occurrence. The presumption of constructive
intention, however, has to be arrived at only when the court can, with judicial
servitude, hold that the accused must have preconceived the result that ensued
in furtherance of the common intention. A Division Bench of the Patna High
Court in Satrughan Patar v. Emperor (AIR 1919 Pat 111) held that it is only
when a court with some certainty holds that a particular accused must have
preconceived or premeditated the result which ensued or acted in concert with
others in order to bring about that result, that Section 34 may be
applied." What then is the fact situation said to have been proved in the
present case ? It is in this context the factual score thus ought to be noticed
at this juncture.
factual score, it appears that 14 accused persons were charged under Sections
302/149 and 307/34 IPC for committing the murder of Bindeshwari Rai on 19th
March, 1992 at 8.00 p.m.
the 14 accused persons were held guilty for the murder by the learned Sessions Judge
: whereas accused Rajendra Rai, Uma Shankar Rai, Sheo Bachan Rai, Shila Nath Rai,
Dharm Nath Rai, Satyendra Sahni alias Satyendra Kumar Sahni and Bankey Rai have
been convicted under Section 302 IPC and sentenced to undergo rigorous
imprisonment for life. All the 14 accused persons, namely Rajendra Rai, Lallan Rai
son of Rajendra Rai, Uma Shankar Rai, Prithvi Rai, Ram Janam Rai, Sudarshan Rai,
Sheo Bachan Rai, Sipar Rai, Birendera Rai, Dharm Nath Rai, Bankey Rai, Shila Nath
Rai, Lallan Rai son of Bankey Rai and Satyendra Sahni alias Satyendra Kumar Sahni
have been held guilty under Section 302/149 IPC and have been convicted thereunder.
Each of them has been sentenced to undergo imprisonment for life under Section
302/149 IPC. All the convicts are, however, presently on bail.
convicts Uma Shankar Rai, Ram Janam Rai, Sudarshan Rai, Prithvi Rai, Lallan Rai
son of Rajendra Rai have been held guilty under Section 307/34 IPC and they
have been convicted thereunder. Each of them has been sentenced to undergo R.I.
for five years under Section 307/34 IPC.
High Court, however, on appeal on 10th May, 2000, confirmed the conviction and
sentences passed by the learned Sessions Judge under Section 302 IPC against Rajendra
Rai, Uma Shankar Rai, Shila Nath Rai, Bankey Rai, Dharm Nath Rai and Sheo Bachan
Rai but passed an order for acquittal for the accused Satyendra Sahni of the
charge under Section 302 IPC.
regards Uma Shankar Rai, Ram Janam Rai, Sudarshan Rai, Prithvi Rai and Lallan Rai,
the High Court also confirmed the conviction and sentences under Section 307
read with Section 34 IPC. The High Court however, acquitted all the accused
persons convicted and sentenced under Section 302/149 IPC and hence the appeal
before this Court upon the grant of leave.
this juncture, it would be convenient to advert to the prosecution case
briefly, so as to appreciate the contentions raised.
case of the prosecution, as would appear from the fardbeyan of Birendra Rai
(PW.9), in short, is that on the day of Holi festival i.e. 19.3.1992 at about 8 p.m., he along with his brothers Bindeshwari Rai , Ruplal Rai
and Ram Dahin Rai was returning from Taraiya Bazar. When they reached their
village, they saw all the 14 accused persons sitting at the house of appellant Rajendra
Rai variously armed with weapons. It is alleged that on the instigation of
appellant Rajendra Rai, all the accused persons encircled the informant and his
companions. Thereafter appellant Rajendra Rai, Satyendra Sahni and Uma Shankar Rai
inflicted injuries with sword on the head of Bindeshwari Rai. Thereupon,
appellant Shila Nath Rai also gave a sword blow on his head. Like the abovenamed
appellants, other appellants Bankey Rai and Dharm Nath Rai assaulted deceased Bindeshwari
Rai with 'farsa'. When Bindeshwari Rai became senseless while appellant Sheo Bachan
Rai caused injury with Bhala, the other accused persons caused injuries with
their respective weapons. The informant further stated that when he wanted to
save his brother, appellant Uma Shankar Rai attacked him with sword but the
blow was warded off.
Ram Dahin and Ruplal tried to intervene, appellant Lallan Rai son of Rajendra Rai
fired his pistol causing injury to Ruplal Rai. It has been further alleged that
the accused persons after committing the murder of Bindeshwari Rai, threw his
body in a maize field, which was situated adjoining north to the road. The
informant and the other witnesses have claimed to have identified the accused
persons in the moonlit night. On the basis of the aforesaid statement, Officer Incharge
of Taraiya Police Station took up investigation and ultimately having found a
prima facie case, submitted charge sheet. Thereupon, the Chief Judicial
Magistrate took cognizance of the offence and committed the case to the Court
of Session calling upon the appellants to face trial.
records depict that one Dr. Dharamnath Singh (PW.11) held the post-mortem
examination on the dead body of Bindeshwari Rai and he found the following
ante-mortem injuries on the person of the body :
Multiple incised wounds about eight in number of varying dimension on the
scalp, more on left side than on the right side, mid-portion.
Incised wound about 3" x " bone deep on the left cheek.
Incised wound about 1" x " skin deep on the back of the neck.
Multiple bruises of varying dimension on the back of chest wall on both sides.
Penetrating wound about " in diameter muscle deep on the right side on the
back of waist.
Incised wound about 3" x 1" bone deep on the right side of chin.
dissection, there were multiple fractures of scalp bone, laceration of
underlying membranes and brain matter with collection of clotted blood in
immediate vicinity of the injured parts. On further dissection fracture of the
right side of ramus of the mandible was disclosed. Rigor mortis was present on
all the limbs.
doctor's evidence reveals that the death of Bindeshwari Rai was caused due to haemorrhage
and shock as a result of injuries to vital organs like brain and mandible
caused by sharp cutting weapon as also by sharp penetrating weapon such as Bhala.
post-mortem examination was conducted within 24 hours.
there is nothing in the cross-examination of the Doctor to discredit the
evidence of the prosecution with regard to the nature of injuries as also to
the manner of assault.
on this state of the situation that Mr. PS Mishra, learned Senior Advocate,
appearing for the appellants with his usual eloquence rather strongly contended
that in view of the findings recorded for charges under Section 302/149 IPC by
the High Court against which no appeal is preferred in this Court, it is
clearly a case where the appellants are supposed to have been convicted for
their individual acts and acts done in furtherance of the common intention of
all, which developed, if at all, in course of the assault on Bindeshwari Rai.
In the absence of any appeal against the said acquittal for the offence under
Section 302/149 IPC it will not be legal to go by the evidence of existence of
any pre-planning etc.
there is evidence that appellants who are convicted under Section 302 IPC
caused injury upon deceased Bindeshwari Rai by lethal weapons on the head and
various other parts of his body, the medical evidence is clear that death was
caused due to haemorrhage and shock caused by the injuries to vital organs like
brain and also mandible caused by sharp-cutting weapons may be Farsa and sword
and also sharp cutting penetrating weapon such as a Bhala.
absence of evidence as to who caused fatal injury or which injury in particular
was fatal, conviction under Section 302 IPC of as many as six appellants (one
of whom who was charged to have hit on the head of the victim by sword has been
acquitted by the High Court) is not sustainable at all.
well settled that culpable homicide is genus and murder is the specie and that
all murders are culpable homicide but not vice-versa. A combined reading of the
provisions in Chapter XVI of the IPC with respect to offences affecting the
human body and the exceptions and illustrations would show that without
ascertaining as to who caused the death or that one of many injuries inflicted
by a certain person alone was the cause of death, no one can be, much less a
number of persons together, be convicted for their acts under Section 302 IPC simpliciter.
More than one person together can be convicted only with the aid of Section 149
IPC (if their number is more than five) or Section 34 IPC if they act in
furtherance of common intention. Since the appellants, however are acquitted
under Section 302/149 IPC, the High Court could not have convicted as many as
six persons under Section 302 IPC.
further contended that it is settled law that several persons may have similar
intention yet they may not have the common intention in furtherance of which
they participated in action. Elaborate discussion of the principles and
dominant features for attracting Section 34 IPC are well discussed and
explained in one of the latest pronouncements of this Court in Suresh (supra).
44 of the judgment in Suresh (supra) this Court (the majority view) stated:
the judgments of the Privy Council in Barendra Kumar Ghosh [AIR 1925 PC 1] and Mahbub
Shah [AIR 1945 PC 118] cases a three- Judge Bench of this Court in Pandurang v.
State of Hyderabad [AIR 1955 SC 216] held that to attract the applicability of
Section 34 of the Code the prosecution is under an obligation to establish that
there existed a common intention which requires a prearranged plan because
before a man can be vicariously convicted for the criminal act of another, the
act must have been done in furtherance of the common intention of all. This
Court had in mind the ultimate act done in furtherance of the common intention.
In the absence of a prearranged plan and thus a common intention even if
several persons simultaneously attack a man and each one of them by having his
individual intention, namely, the intention to kill and each can individually
inflict a separate fatal blow and yet none would have the common intention
required by the section. In a case like that each would be individually liable
for whatever injury he caused but none could be vicariously convicted for the
act of any or the other. The Court emphasised the sharing of the common
intention and not the individual acts of the persons constituting the crime.
Even at the cost of repetition it has to be emphasised that for proving the
common intention it is necessary either to have direct proof of prior concert
or proof of circumstances which necessarily lead to that inference and
"incriminating facts must be incompatible with the innocence of the
accused and incapable of explanation or any other reasonable hypothesis".
Common intention, arising at any time prior to the criminal act, as
contemplated under Section 34 of the Code, can thus be proved by circumstantial
evidence." In Suresh (supra) this Court while recording the dominant
feature for attracting Section 34 has the following to state:
dominant feature for attracting Section 34 of the Indian Penal Code
(hereinafter referred to as "the Code") is the element of
participation in absence resulting in the ultimate "criminal act".
"act" referred to in the later part of Section 34 means the ultimate
criminal act with which the accused is charged of sharing the common intention.
The accused is, therefore, made responsible for the ultimate criminal act done
by several persons in furtherance of the common intention of all. The section
does not envisage the separate act by all the accused persons for becoming
responsible for the ultimate criminal act. If such an interpretation is
accepted, the purpose of Section 34 shall be rendered infructuous." For
true and correct appreciation of legislative intent in the matter of engrafting
of Section 34 in the Statute Book, one needs to have a look into the provision
and as such Section 34 is set out as below:
- Acts done by several persons in furtherance of common intention- 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." A plain look at the Statute reveals that the
essence of Section 34 is simultaneous consensus of the mind of persons
participating in the criminal action to bring about a particular result. It is
trite to record that such consensus can be developed at the spot. The
observations above obtain support from the decision of this Court in Ramaswami Ayyangar
& Ors. v. State of Tamil Nadu [AIR 1976 SC 2027].
similar vein the Privy Council in (Barendra Kumar Ghosh v. King Emperor [AIR
1925 PC 1: 26 Cri. LJ 431] stated the true
purport of Section 34 as below:
words of Section 34 are not to be eviscerated by reading them in this
exceedingly limited sense.
Section 33 a criminal act in Section 34 includes a series of acts and, further,
'act' includes omission to act, for example, an omission to interfere in order
to prevent a murder being done before one's very eyes. By Section 37, when any
offence is committed by means of several acts whoever intentionally cooperates
in the commission of that offence by doing any one of those acts, either singly
or jointly with any other person, commits that offence. Even if the appellant
did nothing as he stood outside the door, it is to be remembered that in crimes
as in other things 'they also serve who only stand and wait.'" The above
discussion in fine thus culminates to the effect that the requirement of
statute is sharing the common intention upon being present at the place of occurrence.
Mere distancing himself from the scene cannot absolve the accused though the
same however depends upon the fact-situation of the matter under consideration
and no rule steadfast can be laid down therefor.
attention to the factual score, once again, be it noticed that the High Court
has rendered the submissions of the defence as regards the witnesses being on
inimical terms as totally hypothetical guesswork de hors the realities and in
justification thereof stated "Simply because another passage was available
for the prosecution party to go to their houses, it would be difficult to hold
that they were not going through the road in question where occurrence took
place." Incidentally, the evidence of PW.7 Ram Dahin Rai, PW.9 Birendra Rai
and PW.10 Ruplal Rai, the informant, stand out to be in full corroboration of
the prosecution's case that no sooner Bindeshwari Rai and his companions
arrived at the place of occurrence, Rajendra Rai exhorted to kill and
thereafter assaulted him with sword. The High Court on appreciation of the
factual situation recorded the same and further stated that Uma Shankar Rai
also caused injury on the head of Bindeshwari Rai by sword and when the latter
fell down in a maize field, Shila Nath Rai assaulted him with sword and Bankey Rai
with Farsa on his neck. It is on this score the High Court in fine concludes as
regards the appreciation of evidence to the effect:
in view of the consistent evidence of the injured eye witness, there appears no
reason to interfere with the findings of the trial court so far it is with
respect to those appellants who have been convicted under Section 302
IPC." The next issue seems to be rather important and we think it
expedient to quote paragraph 13 of the judgment impugned for its proper appreciation
next question, however, rises whether the conviction and sentence against all
the accused persons under Section 302 read with Section 149 IPC can sustain. At
the very outset it may be noticed although the trial court has convicted these
appellants under this count but no finding has at all been recorded whether the
appellants were the members of unlawful assembly and that such unlawful
assembly had the knowledge that the main accused persons had the common object
to commit the murder of Bindeshwari Rai. Because as would appear from the case
of the prosecution, the accused persons were sitting at the Baithaka of
appellant Rajendra Rai and this was nothing unusual since it was the day of Holi
festival. This is not the case of the prosecution that these accused persons
had the knowledge or any such information that deceased Bindeshwari Rai and his
companion would return from Taraiya Bazar to the village through that very path
and at that very time. Rather the above fact would show that the occurrence in
case took place all of a sudden.
and until there is any evidence of the prosecution that all the accused persons
had assembled at the place of occurrence with a common object to commit the
murder of Bindeshwari Rai, it would not be proper to hold them guilty under
Section 302 read with 149 IPC. Therefore, the conviction against such
appellants can at best be recorded under Section 324/149 IPC. Because the
evidence on record suggests that it was the individual act of appellants Rajendra
Rai, Uma Shankar Rai, Shila Nath Rai, Bankey Rai, Dharm Nath Rai and Shiv Bachan
Rai, who had committed the murder of Bindeshwari Rai with their respective
weapons." It is on the basis of the observations as above, the High Court
came to a finding that the appeal on behalf of the appellants Rajendra Rai, Uma
Shankar Rai, Shila Nath Rai, Bankey Rai, Dharam Nath Rai and Sheo Bachan Rai
ought to be dismissed and their conviction and sentence under Section 302 of
the Indian Penal Code as recorded by the trial court stood confirmed.
regards the case for appellants Uma Shankar Rai, Ram Janam Rai, Sudarshan Rai, Prithvi
Rai and Lallan Rai, the High Court did place strong reliance on the evidence of
the injured witnesses ascribing them to be most acceptable and trustworthy
evidence and as such confirmed the sentence under Section 307 read with Section
34 of the Indian Penal Code.
the conviction under Section 302 which is said to be not in accordance with law
and as such Mr. Mishra has been rather vocal and emphatic on that direction. It
is axiomatic that procedural law is the hand-maid of justice and the Code of
Criminal Procedure is no exception thereto. Its incorporation in the Statute
Book has been to sub-serve the ends of justice and non- observance of the technicalities
does not and cannot frustrate the concept of justice since technicality alone
would not out-weigh the course of justice.
however, hasten to add that in the event, however, there being prejudice
leading to a failure of justice, it cannot but be treated to be an illegality,
which is otherwise incurable in nature.
of the early decisions of this Court (Willie (William) Slaney v. The State of
Madhya Pradesh - 1955 (2) SCR 1140), the Full Bench declared and settled the
law on this score and it seems for all times to come. This Court in a recent
decision (Kammari Brahmaiah &Ors. v. Public Prosecutor, High Court of A.P.
JT 1999 (1) SC 259) once again reiterated the law so settled by Willie Slaney
(supra) in the similar vein and same tune. Incidentally, Willie Slaney (supra)
was decided in the year 1955 and on the basis of the then existing Code of
1898, whereas Brahmaiah (supra) has considered the new Code of 1973 and after
adumbrating the observations of Willie Slaney, this Court in Brahmaiah observed
aforesaid discussion leaves no doubt that non-framing of charge would not
vitiate the conviction if no prejudice is caused thereby to the accused. As
observed in the aforesaid, the trial should be fair to the accused, fair to the
State and fair to the vast mass of the people for whose protection penal laws
are made and administered.
Procedure Code is a procedural law and is designed to further the ends of
justice and not to frustrate them by the introduction of endless technicalities.
In the present case, accused were tried on the prosecution version that all of
them went at 3.30 p.m. in the field of the deceased; they picked up the quarrel
with him, inflicted injuries to the deceased as narrated by the prosecution
witnesses, accused no.3 to 6 participated as stated above; the statements were
recorded under Section 313 of the Cr.P.C. and the questions were asked to the
effect that they jointly came at 3.30 p.m. and caused injuries to the deceased
as stated by the prosecution witnesses and the role assigned to accused no.3 to
6 was also specifically mentioned. Hence, it is apparent that no prejudice is
caused to the accused who were charged for the offence under Section 302, by
not framing the charge for the offence punishable under Section 302 read with
149. In this view of the matter, the conviction of the accused no.3 to 6 for
the offence punishable under Section 325 read with 149 cannot be said to be
anyway illegal which require to be set aside." It is in this context
Section 464 Cr.P.C. ought to be noticed at this juncture. Section 464 Cr.P.C.
reads thus :
Effect of omission to frame, or absence of, or error in, charge (1) No finding,
sentence or order by a Court of competent jurisdiction shall be deemed invalid
merely on the ground that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any misjoinder of charges,
unless in the opinion of the Court of appeal, confirmation or revision, a
failure of justice has in fact been occasioned thereby.
the Court of appeal, confirmation or revision is of opinion that a failure of
justice has in fact been occasioned, it may (a) in the case of an omission to
frame a charge, order that a charge be framed and that the trial be recommenced
from the point immediately after the framing of the charge.
the case of an error, omission or irregularity in the charge, direct a new
trial to be had upon a charge framed in whatever manner it thinks fit;
that if the Court is of opinion that the facts of the case are such that no
valid charge could be preferred against the accused in respect of the facts
proved, it shall quash the conviction." As regards the interpretation of
Section 464 this Court has the following to state in Kammari (supra) at
aforesaid Section is in mandatory terms and specifically provides what is to be
done in cases where charge is not framed or there is an error, omission or
irregularity in framing of the charge. From the unequivocal terms of the section,
it can be stated that finding, sentence or order could be set aside only in
those cases where the facts are such that no valid charge could be preferred
against the accused in respect of the facts proved. Secondly, if the facts are
such that charge could be framed and yet it is not framed, but there is no
failure of justice, has in fact been occasioned thereby the finding, sentence
or order of the Court of competent jurisdiction is not to be set aside on that
ground. Thirdly, if there is failure of justice occasioned by not framing of
the charge or in case of an error, omission or irregularity in charge re-trial
of the case is to be directed under sub-section (2)." Incidentally,
Section 464 corresponds to the provisions contained in Sections 232(2), 535 and
537(6) of the old Code.
in this context the law laid down by this Court in Kammari (supra) ought also
to be noticed. This Court in paragraph 14 of the report stated as below:-
"14. The aforesaid discussion leaves no doubt that non- framing of charge
would not vitiate the conviction if no prejudice is caused thereby to the
accused. As observed in the aforesaid, the trial should be fair to the accused,
fair to the State and fair to the vast mass of the people for whose protection
penal laws are made and administered. Criminal Procedure Code is a procedural
law and is designed to further the ends of justice and not to frustrate them by
the introduction of endless technicalities." Similar is the observation of
this Court in Narinder Singh v. State of Punjab (2000 (4) SCC 603) recording
therein that if the ingredients of the Section are present, conviction in
regard thereto can be sustained.
evidence available on record in particular that of injured eye witnesses,
namely, PWs.7, 9 and 10 and the "Fardbayan" which was recorded
without any loss of time to the effect that all the accused persons encircled
the informant and other witnesses and inflicted injuries on Bindeshwari Rai
(deceased) by deadly weapons resulting into his death it is trustworthy and
acceptable and question of decrying the evidentiary value thereof does not and
cannot arise, more so, having regard to the corroborative evidence available on
record by the doctor who conducted the post-mortem.
entire gamut of the matter in issue leaves no manner of doubt the concerted
action by reason of simultaneous conscious mind of persons participating in the
action to bring about the death of Bindeshwari Rai and it is this piece of
evidence which brings in the element of Section 34 even though no charge was
framed thereunder. This conviction and sentence under Section 302 of the Indian
Penal Code can be maintained by adding Section 34 of the Indian Penal Code
thereto that is to say under Section 302/34 of the Indian Penal Code.
regards the conviction under Section 307 of the Indian Penal Code, be it noted
that upon consideration of the injury report as sustained by Ruplal Rai
(PW.10), Ram Dahin Rai (PW.7) and Birendra Rai (PW.9), the factum of causing
grievous hurt though established but conviction under Section 307/34 of the
Indian Penal Code in the interest of justice ought to be altered to under
Section 326/34 of the Indian Penal Code. It is ordered accordingly. The
sentence, however, be also altered to a period of two years without however
imposition of any fine.
appeals thus stand disposed of in the manner indicated above. The appellants be
taken into custody to serve out their respective sentences and in the event
they have already served out their sentence, their bail bonds shall stand