Penal Code, 1860 – Murder – Common intention – Dispute w.r.t partition of land– Victim was beaten resulting in his death, PW1 (his brother) also suffered injuries – Respondent convicted along with 5 others – Respondent’s appeal partly allowed by High Court, holding that he did not share common intention to cause death of deceased as he only inflicted wounds on his feet with a ‘lathi’, was directed to be released having suffered the maximum punishment provided for the offence – Conviction of other 3 coconvicts (‘DS’, ‘BS’, ‘MS’), not challenged herein – Two others (‘MK’, ‘JK’) were acquitted, acquittal w.r.t ‘MK’ has become final – Held: Challenge to the acquittal of ‘JK’ dismissed – In case of respondent, common intention to inflict injuries and cause the death of deceased can be gathered from his action – PW-1 and his wifePW-2 saw the deceased coming from a flour mill which was near the Gurudwara when they were going to the Gurudwara in the village – Respondent and the co-convicts accosted the deceased – Respondent had come with ‘lathi’, while others were seen with an axe, toka and gandasi – They surrounded the deceased – Respondent then struck the feet of the deceased with ‘lathi’, who fell-down – Thereupon, respondent and the co-convicts had beaten and inflicted injuries and wounds to deceased – Respondent shared common intention to cause injuries with other co-convicts – Crime was committed in furtherance of common intention leading to the death of deceased – Therefore, all of them, including respondent, would be responsible for offence u/s.302, irrespective of the part played by them – Impugned judgment acquitting respondent u/s.302 set aside – Convicted u/s.302 r/w s.34 – Conviction u/s.324 for injuries inflicted on PW-1, maintained – Conviction u/s.149 r/w s.148 not sustainable – Respondent to surrender – Code of Criminal Procedure, 1973 – s.428.
Penal Code, 1860 – s.34 – Application of – Discussed.
Penal Code, 1860– s.34 – Common intention – Evidence– Held: Common intention can be formed at the spur of the moment and during the occurrence itself – It is a psychological fact and as such, direct evidence normally will not be available – In most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved – Constructive intention can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention.
Allowing the appeal, the Court
HELD: Challenge to the acquittal of ‘JK’ is dismissed. Respondent was present at the place of the occurrence with ‘BS’, ‘MS’, and ‘DS’ when the violence took place, which resulted in death of deceased. PW-1, the brother of Teja Singh, along with his wife-PW-2, who were going to the Gurudwara in the village, had seen deceased coming from the flour mill, which was near the Gurudwara. Respondent, ‘DS’, ‘BS’, ‘MS’ had then accosted deceased. PW-1 and PW-2 deposed that deceased had come with a ‘lathi’, whereas ‘DS’ were seen with an axe, ‘BS’ with a ‘toka’ and ‘MS’ with a ‘gandasi’. They had surrounded deceased. Respondent had then struck the feet of deceased with ‘lathi’, who then fell-down. Thereupon, respondent and the co-convicts had beaten and inflicted injuries and wounds to deceased. ‘BS’ in particular had used a ‘toka’, a sharp-edged weapon, to inflict incised wounds on the head of deceased. The motive and cause was the land dispute between the brothers, and the occurrence at 5 P.M on 06.11.2000, when deceased had objected to respondent and ‘BS’ ploughing the plot of the water works department, and the village meeting where tempers got flared with respondent and ‘BS’ leaving the meeting in anger. Section
34 of the IPC i.e., common intention, is attracted in the case of respondent, whose case cannot be distinguished, so as to exclude him as one who did not share common intention with ‘DS’, ‘BS’, and ‘MS’. Section 34 of the IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention. Common intention to inflict injuries and cause the death of dececased, can be gathered from the conduct and action of respondent. First, the impugned judgment read with the depositions of PW-1 and PW-2, that respondent had come prepared with ‘lathi’ along with others who had carried ‘toka’, axe and ‘gandasi’. This is corroborated by the fact that bloodsmeared ‘lathi’ was recovered from the possession of respondent. The evidence establishes the participation of respondent, in commission of the offence with co-participants/co-convicts. Secondly, respondent was the first one to attack and inflict injury on deceased, by hitting him on the feet with a ‘lathi’, who had then fallen down. Lastly, respondent along with co-convicts, had inflicted 8 incised wounds on head and other injuries on vital and other parts on the person of deceased, as recorded in the postmortem report (Ex.P.14). The statement of eye witnesses clearly reveal that respondent did not give just one ‘lathi’ blow, but he continued to give ‘lathi’ blows to the deceased, even when he fell down. This he did along with the other co-convicts, ‘BS’, ‘MS’ and ‘DS’, who had inflicted injuries with ‘toka’, axe and ‘gandasi’. Respondent had shared the common intention to cause injuries with other co-convicts, and the crime was committed in furtherance of the common intention, which led to the death of deceased. Therefore, all of them, including respondent, would be responsible for the criminal act i.e., the offence under Section
302 of the IPC, irrespective of the part played by them. The impugned judgment passed by the High Court acquitting respondent under Section 302 of the IPC is set aside, and he is convicted for murder of deceased under Section 302 read with Section 34 IPC. Respondent’s conviction under Section 324 of the IPC for the injuries inflicted on PW-1 is also maintained. The order of sentence passed by the trial court imposing punishment of life imprisonment on respondent, for the offence under Section
302 of the IPC is restored albeit read with Section 34 of the IPC, along with a fine of Rs. 1,000/-. In case of non-payment, he would undergo sentence of simple imprisonment for two months. Benefit of Section 428 of the CrPC, 1973 will be given. However, the conviction under Section 149 read with Section 148 of the IPC cannot be sustained as the requirement of unlawful assembly to attract these provisions of the IPC, is not satisfied. Respondent will surrender. [Paras 1, 9, 11-14][76-G; 79-D-G; 80-B-H; 81-AF]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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