Holding

The appellant is guilty of an offence under Section 307 read with Section 34 IPC, and the sentence is limited to the period already served.

Summary

The complainant, pregnant from a love affair with accused No.1, was lured to a remote spot where accused No.2 restrained her and accused No.1 forced a poisonous insecticide into her mouth, causing her to faint but she survived. Both were convicted by the trial court and the Gujarat High Court under Section 307 read with Section 34 of the IPC (and Section 120B) and sentenced to five years' imprisonment. Accused No.2 appealed, contending that the act did not amount to an attempt to murder and that Section 34 was inapplicable, and also sought remission for the 40 months already served. The Supreme Court held that the essential ingredients of Section 307 – an attempt on human life with intent or knowledge of likely death – were satisfied, and that the joint participation of the accused established a common intention, making Section 34 applicable. Consequently, the conviction under Section 307 read with Section 34 was affirmed, but the custodial sentence was limited to the period already undergone, leading to the appellant's release.

Issues considered

Whether the act of pouring poisonous insecticide constitutes an offence under Section 307 IPC.
Whether Section 34 IPC applies to hold the co-accused liable for the attempt to murder.
Whether the appellant is entitled to remission for the time already served.

Legislation cited

Indian Penal Code, 1860s. 120B, s. 307, s. 34

Subjects

attempt to murdercommon intentionSection 307 IPCSection 34 IPCcriminal conspiracyremissionsentencing

Judgment

(2009] 4 S.C.R. 275
,,.,...;.:;

CHIMANBHAI JAGABHAI PATEL A
)
Vs.
STATE OF GUJARAT & ANR.
Criminal Appeal No. 469 of 2009
MARCH 16, 2009
B
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ)
.. Penal Code, 1860:
•
s. 307 rlw s.34 -Accused pouring poisonous insecticide c
in the mouth of victim while co-accused caught hold of her -
Conviction by trial court - Upheld by High Court - HELD: Co-
accused rightly held by courts below guilty of s. 307 with the
aid of s. 34 - However sentence of 5 years reduced to forty
months period already undergone - Ingredients of s.307 -
D
p
~ Explained - Applicability of s.34 - Discussed.
The appellant (A-2) alongwith A-1 was prosecuted for
commission of offences punishable u/s 307 r/w s.34 and
s.120-8 IPC. The prosecution case was that A-1 had love
affair with the complainant. When the complainant became E
pregnant, A-1 advised her for abortion .but she refused.
She insisted upon A-1 to marry her; a Panchayat was also
called and the decision of Panchayat thatA-1 should marry
't the complainant was declined by A-1. On the day of the
incident, A-1 called the complainant at the place of F
occurrence, where A-2 was also present. A-2 caught hold
of the complainant and A-1 poured a poisonous
insecticide in her mouth, as a result of which the
complainant fainted. The accused left the place. The
complainant was saved by the witnesses. In the hospital G
her statement was recorded by the Mamlatdar. The trial
t -' court convicted both the accused of the offences charged
and imposed a sentence of five years. The High Court
upheld the conviction and the sentence.
275 H
276 SUPREME COURT REPORTS [2009] 4 S.C.R.

A In the instant appeal filed by A-2, the primary stand
taken before the High Court was reiterated that offence u/ '
s 307 was not made out and s.34 IPC was not applicable.
It was additionally pleaded that the appellant having
already undergone sentence of 40 months was entitled
B to certain remissions.
Disposing of the appeal, the Court
HELD: 1. The essential ingredients required to be
proved in the case of an offence u/s 307 IPC are: (i) that
..
the death of a human being was attempted; (ii) that such •
c
death was attempted to be caused by, or in consequence
of the act of the accused; and (iii) that such act was done
with the intention of causing death; or that it was done
with the intention of causing such bodily injury as: (a) the
accused knew to be likely to cause death; or (b) was
D
sufficient in the ordinary course of nature to cause death,
or that the accused attempted to cause death by doing '•
an act known to him to be so imminently dangerous that
it must in all probability cause (a) death, or (b) such bodily
injury as is likely to cause death, the accused having no
E excuse for incurring the risk of causing such death or
injury. [para 6] [280-E-G]
2. The liability of one person for an offence committed
by another in the course of criminal act perpetrated by .-
F several persons arises u/s 34 IPC, if such criminal act is
done in furtherance of a common intention of the persons
who join in committing the crime. The true contents of
the Section are 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. The
G
provision is intended to meet a case in which it may be
I
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. [para 7-8] [281-A-H; 282-A-B]
H
CHIMANBHAI JAGABHAI PATEL VS. 277
STATE OF GUJARAT & ANR.

Ashok Kumar v. State of Punjab AIR 1977 SC 109 and A
Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR 1993
SC 1899 - relied on.
3. In the background of the provisions of ss. 307 and
34, the trial court and the High Court was justified in
8
holding that the appellant was guilty of offence
punishable u/s 307 read with s.34 IPC. Considering the
nature of the accusations and the role played by the
.. appellant, the custodial sentence is restricted to the period
already undergone. [para 9-10] [282-C-E]
c
Case Law Reference
AIR 1977 SC 109 relied on para 7
AIR 1993 SC 1899 relied on para 8
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal D
No. 469 of 2009
From the Judgement and Order dated 22.11.2006 of the
Hon'ble High Court of Gujarat in Criminal Appeal No. 667 of
1998. E
Nikhil Goel, Shajid M. Bafaki, Sheela Goel, for the
Appellant.
Hemantika Wahi, K. Enatoli Serna, Somnath Padhan, for
the Respondent. F
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J.
1. Leave granted .
• 2. Challenge in this appeal by accused no.2 is to the
G

judgment of a learned Single Judge of the Gujarat High Court
upholding the conviction of the appellant for offences punishable
under Section 307 read with Section 34 and Section 120 B of
the Indian Penal Code, 1860 (in short the 'IPC'). Learned H
278 SUPREME COURT REPORTS [2009] 4 S.C.R.

A Additional Sessions Judge, Valsad, had recorded the judgment
of conviction and had imposed sentence of five years for the
first offence and no separate sentence was imposed for latter
offence. Fine of R::..500/- with default stipulation was also
imposed.
B 3. Background facts in a nutshell are as follows:
On 26.11.1987 around 07:30 p.m. in village Kaanjan
Ranchhod, Tai in Dist. Valsad, the appellant-accused no.1 called
the complainant Kalaben Jagabhai Patel at Khadi to take money
c and dlso told her that he had some work with her. The accused
no.2 also reached at the same place from where both the
accused took the complainant in Vadi of Chamarbhai Revlabhai,
where for about half an hour, they were talking and thereafter
with an intention to kill the complainant they, forcibly made the
complainant drink an insecticide used in Chilly Crop named as
0
'Eka Laxys EC.25'. The accused no. 2 caught hold of the
complainant and thus. committed offence of an attempt to murder
the complainant.
The complainant was residing at Village 'Kaanjan
E Ranchhod' ofTaluka Valsad along with her mother and brothers.
The father of the complainant had expired about 6-7 years ago.
She had studied upto 8th Standard. On 26.11.1987, the
complainant had gone to Khadi for washing the clothes at about
12 noon. At that time, her aunt had also come to wash the clothes
F and after completing the work of washing clothes, she (the aunt)
went away. Thereafter, around 2 noon, Satishbhai Nichhabhai
and lshwarbhai Khusalbhai, residents of the same Faliya as
that of the complainant, had come to wash their clothes. The
complainant, after getting her clothes dried around 3 O'clock,
G started to go to her house. On the way, the accused no.1
Jayantibhai Gulabbhai met her near his field and asked the
complainant to come at Khadi in the evening to collect money.
He (accused no.1) also told that he has some personal work
with her. The complainant told him (accused no.1) that she will
H come in the evening and went to her home. Thereafter around
CHIMANBHAI JAGABHAI PATEL VS. 279
STATE OF GUJARAT & ANR. [DR. ARIJIT PASAYAT, J.]
7:00 p.m., the complainant went to 'Khadi' where the accused A
no.1 was present. While she was talking with the accused no.1,
the appellant-accused no.2 Chimanbhai Jagabhai reached ·
there. Thereafter, both the accused took the complainant to Vadi
of Chamarbhai. There they talked for about an hour. Thereafter,
all of a sudden accused No.2 Chimanbhai Jagabhai caught hold B
of the complainant and accused No.1 Jayantibhai took out a
bottle of poisonous medicine used as insecticide in chilly crop
... forcibly poured the same in the mouth of the complainant. As
• the complainant was caught hold of by the accused no.2
Chimanbhai Jagabhai, she could not shout. On medicine being c
administered to the complainant, she fainted and the accused
ran away from the place. After sometime the complainant
regained consciousness and she shouted for help. On hearing
shouts of the complainant, her brother Nahhubhai, lshwarbhai
and Ukadbhai came running there and they brought the
D
"' "' complainant to the house of lshwar. There she was administered
juice of Neem tree, where after the complainant vomited. The
complainant was then admitted, in the hospital at Valsad. On
the next day, Mamlatdar, Valsad, recorded the statement of the
complainant. The real cause of the incident was the love affair
between the complainant Kalaben and accused no.1 Jayantibhai E
as a result of which the complainant became pregnant. The
accused Jayanatibhai advised the complainant and also gave
~ I
some tablets to her to get the child aborted, but as it was not
possible, the complainant asked the accused Jayantibhai to
marry her. Initially, he agreed for the same, but then he turned F
around and did not marry the complainant. The brother of the
complainant Nabhubhai then talked to Hirkabhai and meeting
of 'Caste Panch' was called. There it was agreed that
Jayantibhai and complainant be married. But as the accused
Jayantibhai was not willing to marry the complainant, he tried to G
kill the complainant by administering the poison forcibly.
The investigation was undertaken and charge sheet was
filed. The trial court placed reliance on the evidence of the
witnesses and found the appellant guilty. Emphasis was laid on
H
280 SUPREME COURT REPORTS [2009] 4 S.C.R.

A the evidence of the complainant (PW 5), Nabhubhai Jagabhai ~
.....
(PW8), Balubhai Maganbhai (PW5) and Dr. Ram Ratan (PW2).
Before the H: h Court the primary stand in appeal was
that offence under Section 307 is not made out. It was also
submitted that Section 34 has no application. The High Court
B did not accept this plea and found the appellant, who was A2
before the trial court, guilty. The High Court held that the present
appellant rightly been convicted by application of Section 34
..
~

!PC.

c 4. The stand taken before the High Court was reiterated
by :earned counsel for the appellant. Additionally, it was
submitted that out of the sentence of five years imposed, the
appellant had already undergone sentence of more than 40
months and is entitled to certain remissions.
D 5. Learned counsel for the respondent-State on the other ~

· hand supported the judgment of the trial court as affirmed by
the High Court.
6. The essential ingredients required to be proved in the
case of an offence under Section 307 are:
E
(i) that the death of a human being was attempted;
(it) that such death was attempted to be caused by, or in
consequence of the act of the accused; and

F (iit) that such act was done with the intention of causing
death; or that it was done with the intention of causing
such bodily injury as: (a) the accused knew to be likely to
cause death; or (b) was sufficient in the ordinary course of
nature to cause death, or that the accused attempted to
cause death by doing an act known to him to be so
G
imminently dangerous that it must in all probability cause
(a) death, or (b) such bodily injury as is likely to cause
•
death, the accused having no excuse for incurring the risk
of causing such death or injury.
H 7. Section 34 has been enacted on the principle of joint
CHIMANBHAI JAGABHAI PATEL VS. 281
STATE OF GUJARAT & ANR. [DR. ARIJIT PASAYAT, J.]
_. liability in the commission of a criminal act. The Section is only A
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 B
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 c
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
D
must necessarily be before the commission of the crime. The
•"
true contents of the Section are that if two or more persons
intentionally do an act jointly, t./le 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 '~. a E
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 F
in order to attract the provision.
8. The Section does not say "the common intention of all'',
nor does it say "and intention common to all". Under the
provisions of Section 34 the essence of the liability is to be
G
found in the existence of a common intention animating the
accused leading to the commission 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
H
282 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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
B or to prove exactly what part was taken by each of them. As was
observed in Ch. Pu/la 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.
For applying Section 34 it is not necessary to show some overt ...
c act on the part of the accused.
9. In the background of the aforesaid provisions the trial
court and the High Court was justified in holding that the appellant
was guilty of offence punishable under Section 307 read with
Section 34 IPC.
D
10. Coming to the question of sentence considering the
•
nature of the accusations, the role played by the appellant and
the period of custodial sentence already undergone without
remission, the same is restricted to the period already
undergone. The appellant shall be released from custody
E forthwith unless required to be in custody in any other case.
11. The appeal is disposed of accordingly.

R.P. Appeal disposed of.