Holding

Acquittal of some co‑accused does not bar conviction of the remaining accused under Section 302 IPC read with Section 34, and the evidence supports a murder conviction, not a Section 304 Part II conviction.

Summary

Pipal Singh and Mukhtiar Singh were convicted of murder under Section 302 IPC read with Section 34, along with several others, for causing two fatal injuries to the deceased. Some co‑accused were acquitted. On appeal, the appellants argued that the acquittal of other accused barred their conviction under Section 302 with Section 34 and that they could only be convicted under Section 304 Part II. The Supreme Court held that the acquittal of some accused does not prevent the court from convicting the remaining accused under Section 302 with Section 34 where common intention is proved. The Court also found that the nature of the injuries and the manner of the attack satisfied the requirements for murder, not merely culpable homicide under Section 304 Part II. Consequently, the appeals were dismissed.

Issues considered

Whether the acquittal of some co‑accused precludes conviction of the remaining accused under Section 302 IPC read with Section 34.
Whether the facts of the case warrant conviction under Section 304 Part II IPC instead of Section 302 IPC with Section 34.
How common intention under Section 34 IPC is to be determined in a multi‑accused case.

Legislation cited

Indian Penal Code, 1860s. 302, s. 304 Part II, s. 323, s. 34

Subjects

murdercommon intentionSection 34 IPCacquittal of co‑accusedculpable homicidecriminal lawevidencefatal injuries

Judgment

PlPAL SINGH ETC. A
v.
STATE OF PUNJAB

DECEMBER 12, 2000

(S. RAJENDRA BABU AND D.P. MOHAPATRA, JJ.] B

Penal Code. 1860

Section 302 r/w Section 3-1--Conviction under- Acquittal of other
accused Held, even in view of the acquittal conviction by involving Section C
34 In the facts of the case justified Conviction cannot be altered to under
Section 304 Part II.

Section 34- .Co11mon intention-Determination of -To determine the
common intent: '>11, the nature of injuries, background of the incident and the D
nature of weapon used to cause the injuries besides other factors are needed
to be considered.

Appellants along with several others were charged with offence under
Section 302/34 and 323/34. Trial Court convicted the appellants along with
some others for the offences, while others were acquitted. In appeal, High E
Court held that the appellants had common intention to cause murder of the
deceased and confirmed the conviction on finding that two injuries were caused
by the appellants which were fatal in the ordinary course of nature. In appeal
to this Court, the appellants contended that they could not be convicted under
Section 302 by involving Section 34 in view of acquittal of other accused and
that they could be convicted only under Section 304 Part II. F
Dismissing the appeals, the Court

HELD: I. Even where some out of several accused are acquitted, it is
open to the Court to consider whether remaining accused were guilty of an
offence by involving Section 34 IPC by reason of having committed the offence G
along with others acquitted. With a view to determine the common intention,
the nature of injuries, background of the incident and the nature of weapon
used to cause the injuries besides other factors are needed to be considered.
There is no principle in law which prevents from adopting this course.
f547-CI H
545
546 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A 2. In view of the evidence alleged against the accused, and the manner
in which they have committed the same, it is clear that Section 304 Part II
would not arise. [547-E[

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 432
of 1999.
B
From the Judgment and Order dated 11.8.97 of the Punjab and Haryana
High Court in Crl. A. No. 406of1994.

WITH

C Criminal Appeal No. 433of1999.

K. Sarda Devi for the Appellants.

Ms. Rupind~r Wasu and Rajiv Dutta for the Respondent.

D The Judgment of the Court was delivered by :

RAJENDRA BABU, J. Pipal Singh, appellant in Criminal Appeal No. 432
of 1999 and Mukhtiar Singh, appellant in Criminal Appeal No. 433 of 1999,
were accused along with several others for having caused the death of
Sardara Ram and injuries to Sukhdev Raj when they were entering their own
E land. The learned Sessions Judge sentenced the appellants along with certain
others to undergo life imprisonment and to pay a fine of Rs: 5000 each or in
default of payment of fine to further undergo rigorous imprisonment for one
year under Section 302 IPC read with Section 34 IPC for murder and further
sentence to undergo rigorous imprisonment for six months for simple hurt
under Section 323 IPC read with Section 34 IPC and both the sentences to
F run concurrently. On appeal the High Court reappraised the evidence adduced
before the trial court and came to the conclusion that the appellants had a
common cause and had come together duly armed at a place which was in
possession of the deceased with the common intention to commit the crime
and they left the scene of the occurrence also together with their respective
G weapons. The High Court recorded the two injuries found on the dead body
of the deceased, viz., (i) T-shaped incised wound 15 ems x 2 ems by I0 x 2
ems on right parietal region, underlying bone, scalp and brain were cut, and
(ii) incised wound 5 x 1.5 ems, 5 ems behind injury No. I and that injury No.
(ii) was bone deep and the doctor opined that injuries Nos. (i) and (ii) were
fatal in the ordinary course of nature. The evidence put forth before the court
H was that while Pipal Singh caused the first injury, injury No. 2 was said to
PIPAL SINGH v. STATE OF PUNJAB (RAJENDRA BABU, J.) 547
----- have been caused by Mukhtiar Singh. That evidence had been believed by A
\ the High Court.
_j

The learned counsel for the appellants put forth two contentions, namely,
(I ) the effect of acquittal of other accused in the case on sentencing accused
under Section 302 !PC by involving Section 34 lPC, and (2) as regards the
offence stated to have been committed by each of them. B
Even where some out of several accused are acquitted it is open to the
court to consider whether remaining accused were guilty of an offence by
involving Section 34 !PC by reason of having committed the offence along
with others acquitted. With a view to determine the common intention, the C
nature of injuries, background of the incident and the nature of weapon used
to cause the injuries besides other factors are needed to be considered. There
is no principle in law which prevents from adopting that course set out above
by us. In the circumstances arising in the case the High Court has done the
necessary exercise in finding out whether the accused needed to be convicted
under Section 302 IPC read with Section 34 IPC. We find no infirmity in the D
same.

So far as the evidence alleged against the accused is concerned and
the manner in which they have committed the same, it is clear that Section
304 Part II would not arise as rightly held by the High Court. So neither of
the contentions raised by the learned counsel for the appellants can survive E
close scrutiny and stand rejected.

The appeals are dismissed.

K.K.T. Appeals dismissed.
F