Shankar Vs. State of U.P  Insc 64 (4 February 2004)
Raju & Arijit Pasayat Arijit Pasayat,J.
appellant questions his conviction for offence punishable under Section 302
read with Section 34, Section 307 read with Section 34 and Section 394 of the
Indian Penal Code, 1860 (in short 'the IPC').
Court had convicted the appellant and 3 others who faced trial with him for the
offences relatable to Sections 302 and 307 read with Section 34; and Section
394 IPC. Each was sentenced to undergo imprisonment for life for the first
offence and for the other two offences 5 years imprisonment on each count. All
the four accused persons preferred appeal before the High Court. During pendency
of the appeal before the High Court two of them, namely, Iqbal Sankar and Jungli
(A-3 and A-4 respectively) died and the appeal stood abated so far as they are
concerned. The conviction and sentence were maintained so far as the appellant
and A-1 Devi Shankar are concerned. It is pointed out that the SLP filed by A-1
Devi Shankar has been dismissed by this Court.
version and the stand taken by the accused during trial are essentially as
Singh, H.P. Tewari (PWs 1, 3 respectively) and the deceased were coming after
seeing the fair at Bhuvreshwar and were going back to their village. On the
way, near the village Bhawalia at about 7.30 p.m. when the sun had set, they felt the need to some Bedi and went to
weather was cloudy and there was drizzling. They entered in village and
purchased the Bedi from a shop and decided not to go further to their village,
as it was dark and rain had started falling, they decided to stay at the house
of Raj Bahadur Singh (PW-5), whom (PW-3) claimed to know.
meantime, the accused persons saw them and thought they are criminals. They
shouted that being notorious should be beaten. The deceased and PWs 1, 3, and 5
replied that they were innocent villagers and had decided to stay in the house
of PW-5 because of rain. So, saying they proceeded towards the (PW-5). After
they had gone few steps, suddenly A-1 fired two shots, one of which hit the
deceased and other hit PW-3. When PWs 1 and 3 and the deceased shouted, many
villagers including PW-5 came there. There was exchange of hot words and A-2,
A-3 and A-4 assaulted PW- 3. A-3 removed gold ring and watch of the deceased.
The gun of Harihar Prasad Tewari (PW-3) was snatched away by A and it was
deposited next day in the police station.
witnesses were examined to further the prosecution version. Three of them i.e. Arun
Singh (PW-1), H.P. Tewari (PW-3) and R.B. Singh (PW-5) claimed to be
eyewitnesses. The Trial Court found the evidence of the eyewitnesses to be
credible, cogent and accordingly convicted and sentenced as noted above. The
High Court did not find any infirmity in the conclusions of the Trial Court to
support of the appeal, learned counsel for the appellant submitted that no role
has been ascribed to the appellant so far as death of deceased is concerned. It
is the prosecution case itself, that appellant and the two accused persons who
have died during appeal before High Court assaulted only PW-3 with lathies. Devi
Shankar fired shots one of which hit the deceased, and the other PW-3. So far
as accusations relating to Section 394 IPC are concerned, there is no evidence
that the appellant snatched gun of PW-3 or in any manner facilitated snatching.
Even the snatching of the ring is attributed to somebody else.
event, Section 34 would have no application to the case at hand.
contra, learned counsel for the State submitted that all the four accused
persons questioned the propriety of the presence of the deceased and the
eyewitnesses in the village in the dark and thinking that they were persons of
ill-repute who had come to the village for the purpose of decoity, they were
assaulted. Therefore, Section 34 was clearly applicable. Similar, was the
submission respect of snatching of the gun from PW-3 which was deposited with
the police on 25.9.1978 i.e. the day following the day of occurrence.
noticed that neither the Trial Court nor the High Court assigned any reason for
applying Section 34 IPC. On surmises and conjectures, it was observed by the
Trial court that though there was no direct evidence showing pre-concert or
earlier meeting of mind, the possibility of it having developed at the spot
cannot be ruled out. For coming to such conclusion, there was neither any
direct or circumstantial evidence. So far as the High Court is concerned, it
appears that no definite finding has been recorded. The specific plea of the
accused-appellant before it that Section 34 is not applicable.
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 concept of 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 (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.
Section does not say "the common intention of all", nor does it say
"and intention common to all".
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.
applying Section 34 it is not necessary to show some overt act on the part of
evidence on record does not show that the accused persons shared the common
intention to kill the deceased.
accepted that the first reaction after questioning the deceased and PWs 1 and 2
was that they were criminals, notorious and should be beaten. No further act is
attributed. They even did not chase them. It is also accepted that after they
had gone some distance A-1 fired the gun twice. It appears from the evidence of
PWs 1 and 3 that A-1 was also armed with lathi. There is no evidence to show
that other accused persons were aware that he was also carrying a gun or that
he intended to use it. The Trial Court having accepted that there was no
evidence of any type to show pre-concert came to a hypothetical conclusion that
it may have developed at the spot. There is no material to support the
conclusion. The High Court unfortunately did not specifically deal with this
aspect. The inevitable conclusion is that the appellant cannot be convicted in
terms of Section 302 read with Section 34 IPC.
brings us to the question regarding the legality of conviction under Section
307 IPC read with Section 34 IPC. PW-3 has sustained, as noted in the injury
report, serious injuries on different parts of his body. It has been
established by the evidence of PW-3; an injured witness and other eyewitnesses
that he was assaulted by the appellant and the other accused persons. Learned
counsel for the appellant submitted that the injuries which can be attributed
to the appellant were not of very serious nature, and the most serious injury
was the one which PW-3 sustained on account of the firing by A-1. We find that
PW-3 had sustained 11 injuries. Though injury no.1 was attributed to fire arm,
there were two other injuries which were considered to be very serious.
307, IPC reads :
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." 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
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. An 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 execution thereof.
position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. (1983 (2) SCC 28).
the factual background is considered in the background of true ambit of Section
307, the inevitable conclusion is that the appellant has been rightly convicted
under Section 307 read with Section 34 IPC.
to the question whether Section 394 would have any application to the facts of
the case, it is an admitted case of the prosecution that the snatching of the
gun and the other articles were not attributed to the appellant and also
Section 34 was not pressed into service for the accusations. That being so, the
conviction under Section 394 IPC so far as the appellant is concerned cannot be
maintained. The conviction is accordingly set aside.
ultimate, conviction under Section 307 read with Section 34 IPC and sentence
imposed by Trial Court and affirmed by High Court need no interference and are
is allowed to the extent indicated above.