Holding

The conviction under Section 302 read with Section 34 IPC cannot be maintained as common intention to murder was not proved; conviction under Section 394 IPC is upheld with a reduced sentence of ten years' rigorous imprisonment and a fine.

Summary

A highway robbery on 20 April 1975 resulted in the death of Naresh Chand after he was stabbed. Five persons were initially charged; the Delhi High Court acquitted one, leaving four accused. The High Court convicted the four under Sections 302/34 IPC (murder with common intention) and 394 IPC (voluntarily causing hurt in robbery) and sentenced them to life imprisonment. The Supreme Court held that the evidence did not establish a common intention to murder, so the conviction under Section 302 read with Section 34 could not be sustained. It upheld the conviction under Section 394 IPC, reducing the sentence to ten years' rigorous imprisonment and a fine of Rs. 500 per accused.

Issues considered

The existence of a common intention among the four accused to commit murder under Section 34 IPC.
Whether conviction under Section 149 IPC is maintainable when only four persons are involved.
The appropriate charge and sentence for the accused in view of the injuries inflicted during the robbery.

Legislation cited

Indian Penal Code, 1860s. 143, s. 149, s. 302, s. 34, s. 394, s. 395, s. 396, s. 397

Subjects

highway robberycommon intentionSection 34 IPCSection 394 IPCmurderconvictionsentencingSupreme Court

Judgment

A BISHAN DAY AL AND ORS.
v.
STATE OF DELIB (ADMN.)

DECEMBER 20, 1991

B [KULDIP SINGH, P. B. SAWANT AND N. M. KASLIWAL, JJ.]

Indian Penal Code, 1860 :

·sections 34, 302 and 394-Committing robbery and voluntarily causing
hurt-Leading to death of victim-Common intention-Nature of injuries- -!
C Victim lYalking quite some distance after the injuries-Common intention to
commit murder-.,..Whether established.

. There was a high way robbery committed by five persons. As a result
of the injury inflicted by the accused, one person died. Charge sheet was
filed. The Sessions Court convicted and sentenced all the five persons
D under Sections 302, 395, 396, 397, 143 and 149 IPC. ·

All the accused preferred appeals before the High Court. The High
r .
Court acquitted one of the five accused and held that the remaining ~-·

accused committed the offences. It also held that as there were only four
E accused, conviction under Section 149 cannot be maintained, but they
· could be convicted for murder with the help of Section 34 IPC as there was
common µttention of robbry and committing murder of the deceased.
Accordingly, the High ·court convicted the four accused under Section
302134 and 394 IPC, and sehtenced them to imprisonment for life. Their
__.conviction under other sections was set aside.
F
Aggrieved against the High Court's decision, all the four accused
preferred appeals before this Court.

Disposing or the appeals, this Court,

G HELD :·1. The High Court has itself arrived at the conclusion that ~
all the accused appellants had committed robbery, but so far as inflicting
injuries on the dceased is concerned, it was not possible to say as to which
of the appellants inflicted the stab blows. Apart from the two injuries
inflictd on non-vital parts of the body, it is clearly borne out from the
record that after receiving the stab injuries the deceased had travelled a
H distance or approximately 116 paces from the place of stabbing. The High

548
BISHAN DAYAL11. STATE 549

Court after considering the statements of eye witneaes observed that it A
"" could not overlook the fact that none of these witnesses suspected that the
injuries suffered by t ..e deceased could be fatal especially when be was
found in a position to walk. In view of the above circumstances and the
nature of injuries, the High Court was wrong in holding that the accused·
appellants had a common intention to commit murder of the deceased so
as to bring their case within the purview of Section 34 IPC. Thus the B
conviction of the appellants cannot be maintained under Section 302 read
with Section 34 IPC. (551-F, 552-B, CJ
~
2. The High Court was right in holding that as there were only four
persons the conviction under Section 149 IPC cannotJ>e maintained.
(551-A, 552-A] c
3. The accused-appellants are guilty or offence under Section 394
IPC. The High Court has already found the accused-appellants guilty
under Section 394 IPC apart from Sections 302/34 IPC. The conviction
and sentence of all the accused-appellants under Section 302 read with
Section 34 IPC is set aside. The conviction of all the accused-appellants D
~ under Section 394 IPC is upheld but the sentence is reduced from impris-
onment for life to ten years' rigorous imprisonment. Each one or the
accused persons' is also sentenced to pay a line of Rs. 500 under Section 394
IPC; in default of payment of line to further undergo rigorous impr~n-
ment for a period of two months. (552-D·GJ
E
4. The appellant in Criminal Appeal No. 57 of 1980 having died, the
•-/ appeal preferred by him abates. (550-B]

CRIMJNAL APPELLATE JURISDICTION : Criminal Appeal No. 401
of 1979.
F
From the Judgment and Order dated 28.8.1978 of the Delhi High Court
in Criminal Appeal No. 430of1977.
A_
WITH
G
Criminal Appeal Nos. 602n9, 57/80 and.267/82.

R.K. Jain, R.P. Singh, K.V. Venkataramani, K.R. Nagaraja and Ashok
Bhan for Ms. A. Subhashini for the appearing parties.

The Judgment of the Court was delivered by : H
550 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A KASLIWAL, J. All the above four appeals relate to the same incident 'r
and are directed against the same Judgment of Delhi High Court dated "
26.8.1978 as such they are disposed of by one single order. It may be
mentioned that so far as Appeal No. 57 of 1980 is concerned, the accused
appellant Amar Singh Solanki having died, his legal representatives have filed
an application for pemiitting them to continue the appeal, but as we are
B maintaining the conviction, it is unnecessary to bring the legal representatives
on record and we dismiss this appeal as having abated.

We do not consider it necessary to mention the facts_in detail as we are _,
I
upholding the findings of the High Court as regards the participation of the
accused appellants in the crime. The only question to be considered by us is
c regarding the offence committed by the appellants and the sentence to be
awarded in the facts and circumstances of the case.

The incident relates to a highway robbery committed on 20th April, 1975
at 7.30 p.m. in which one Naresh Chand resident of house No. 1/2 Ram Kishore
Road, Civil Lines, Delhi died on account of injury inflicted by accused persons.
D The police challaned five persons, namely, Subhash, Jagmal Singh, Bishan
Dayal, Suraj Bhan and Amar Singh for dacoity and murder. The learned {
Additional Sessions Judge, Delhi convicted and sentenced all the five persons
in the following manner :
~
(1) Subhash-convicted under Sections 302/396 lPC and sentenced to
E death-convicted under Section 143 IPC and sentenced to rigorous
imprisonment for six months-also convicted undyr Sections 395/
397 and sentenced to rigorous imprisonment for ten years. ~·-

(2) Jagmal Singh, Bishan Dayal, Suraj Bhan and Amar Singh Solanki-
all these four accused persons convicted under Sections 302/149 as
F
well as under Sections 395/396 IPC and sentenced to imprison-
ment for life. All these persons were also convicted under Section
143 IPC and sentenced to regirous imprisonment for six months.·

Aggrieved against the Judgment of the Additional Sessions Judge, all the
G accused persons filed appeals in the High Court The High Court allowed the
appeal of Jagmal Singh and acquitted him of all the charges. As a result of
acquittal of Jagmal Singh, the High Court held that only four accused persons
remained involved in the incident. The High Court held that the prosecution
had named only five persons who jointly robbed and murdered Naresh Chand
but now with the acquittal of Jagmal Singh the number was reduced to four and
H the presumption, therefore, had to be that only four persons committed the
BISHANDAYALv. STATE [KASLIWAL, J.] 551

offences. The High Court further held that as there were only four persons the A
conviction under Section 149 cannot be maintained, but the appellants can be
convicted for murder with the help of Section 34 IPC, if common intention of
the appellants to commit murder was held proved. The High Court while
discussing the question of common intention held as under :-

"The facts discussed above show that the four appellants were B
travelling in a scooter-rickshaw at the time of the incident; the

. .registration number of the rickshaw could not be seen since some
mud had been splashed on a part of its number plate; the rickshaw
suddenly stopped near Naresh Chand who was walking on the
road; first two of the offenders jumped out of the rickshaw and
stabbed Naresh and then two more got down from the rickshaw and c
all the four robbed Naresh Chand; engine of the scooter-rickshaw
was kept running during this interval; when a hue and cry was
raised by Shanti Lal and Rajinder Singh P.Ws, the four assailants
jumped back into the rickshaw which was driven away from the
place of incident We have absolutely no doubt that the offenders
had the common object of robbing and committing murder of D'
Naresh Chand. It is true that we do not know which of the
appellants gave the stab blow".

The High Court after arriving at the above conclusion convicted all the
accused appellants under Sections 302/34 and 394 IPC. Their conviction under
other Sections was set aside. The High Court sentenced all the accused E
appellants to imprisonment for life both under Sections 302/34 as well as 394
-I IPC.

We have gone through the record and have heard learned counsel for
both the parties. The High Court has itself arrived at the conclusion that all the
F
accused appellants had committed robbery, but so. far as the inflicting the
injuries on Naresh Chand is concerned, it was not possible to say as to which ~
y
of the appellants inflicted the stab blows. It is proved from the statement of Dr.
A.K. Ghosh who conducted the autopsy of the dead body of Naresh Chand that ~
"' there was one incised wound over the upper back part of left arm and another
transverse incised punctured wound over the back of upper part of left thigh. G
Li
In the opinion of Dr. A.K. Ghosh the death of Nares~ was due to haemorrhage
and shock as a result of the stab injuries on the left ann caused by a sharp edged
penetrating weapon. In his opinion injury No. 1 was sufficient to cause death
in the ordinary course of nature.

The High Court rightly held that as there were only four persons the H
552 SUPREME COURT REPORTS . [1991) S!-JPP. 3 S. C.R.

~

A conviction under Section 149 IPC cannot be maintained but again while
considering the question of common intention it fell into error in holding that
,,, the.offenders had the common object of committing murder of Naresh Chand.

Apart froin the two injuries inflicted on non vital parts of the body, it is
clearly born out from the record that after receiving the 'stab injuries Naresh
;B Chand had travelled a distance of approximately 116 paces from the place of
stabbing. The High Court after considering the statements of P.W. 11 Shanti
Lal and P.W. 12 Rajender Singh-eye witnesses of the incident observed "we
~
cannot overlook the fact that none of these witnesses suspected that the injuries '
suffered by Naresh could be fatal especially when he was found in a p0sition
to walk", From a persua1 of the above circumstances coupled with the nature
:c of injuries we are clearly of the view that the High. Court was wrong in hOlding
that the accused appellants had a commol} inientiOO·to commit murder of
Naresh Chand so as to bring their case within the plirview of section 34 IPC.
Under these circumstances the conviction of the _appellaJUs cannot be main-
tained under Section 302 read with Section 34 IPC.

D We have now to consider as to what offence has been c'ommitted by the
accused-appellants arid what sentence can be imposed on them. In our view the
accused-appellants arc guihy of offence under Sec. 394 IPC according to which
if any person, in committing robbery, voluntarily causes hurt, such person, and
any other person jointly concerned in committing such robbery is guilty of such
offence and the punishment provided is imprisonment for life, or rigorous
E imprisonment for a tenn which may extend to ten years and shall also be, liable
to fine. The High Court has already found the accused-appellants guilty for
offence .under Section 394 IPC apart from. section 30'2/34 IPC. In the fact8 and 'f-·

circumstances of the case we allow Criminal Appeal Nos, 40ln9, (J)2(19 and
267/82 in part, set aside the conviction and sentence of all the accused-
appellants under Section 302 read with Sec. 34 IPC. We uphold the conviction
F of all the accused appellants under Section 394 IPC, but reduce the sentence
:~~~
;..\ t,
· from imprisonment for life to ten years' rigorolis imprisonment Each one· or
the accused persons is also sentenced to pay a fine of Rs. 500 un~~r Sec. 394
1~· IPC. In default of payment of fine to further undergo rigomus imprisonment for·
"',
f' a period of two months. The accused appellants would surrender to the bail
A

bonds and serve out the remaining part of sentence and pay the fine imposed.
G In case the accu~ appellants do not surrender within a pcreiod of two months,
the Chief Metropolitan Magistrate, Delhi shall take proper steps for arresting
the accused appellants to serve out the remaining sentence.

G.N Appeals disposed of.