Holding

The appellant cannot be convicted under Section 302 read with Section 34; the proper conviction is under Section 326 IPC.

Summary

The appellant Rajesh Kumar and his brother Surjit Singh attacked the deceased Ravinder Kumar; Surjit inflicted a fatal head wound with a drat while Rajesh struck non‑vital parts with a danda. After the assault, a witness seized the danda from Rajesh and threw it away, and Rajesh fled without picking it up. The trial court and High Court convicted both under Section 302 read with Section 34 of the IPC, sentencing them to life imprisonment. On appeal, the Supreme Court held that Section 34 requires a common intention to cause the death and participation in the act that caused death, which was absent in Rajesh's conduct. Consequently, Rajesh could not be convicted for murder under Section 34 and should instead be convicted under Section 326 for voluntarily causing grievous hurt, with a three‑year imprisonment. The Court also clarified that relatives of the victim are not automatically deemed unreliable witnesses.

Issues considered

Whether Section 34 IPC applies to the appellant for conviction under Section 302 IPC.
Whether the appellant shared a common intention to cause the death of the deceased.
Appropriate conviction and sentence for the appellant based on his actual conduct.

Legislation cited

Indian Penal Code, 1860s. 302, s. 326, s. 34

Subjects

Section 34 IPCcommon intentionmurdergrievous hurtconvictionevidencewitness credibility

Judgment

[2008] 14 S.C.R. 234

A RAJESH KUMAR
v.
r---
STATE OF H.P.
(Criminal Appeal No.639 of 2001)
OCTOBER 3, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.] )---
Penal Code, 1860 - s. 302 rlw s. 34 and s. 326: r-

c Common intention - One accused assaulted deceased
..__

on head with 'darat' (a sharp edged tool) which caused incised
injury - Appellant, the other accused, assaulted deceased on
non-vital parts of body with 'danda' (thick stick) - Incised injury
on head proved fatal - Conviction of Appellant by Courts be-
D low uls. 302 rlw s. 34 with life imprisonment- Propriety of.:... Held:
Not proper - Only the injuries on non-vital parts attributed to
Appellant - Besides, after a PW snatched away the 'danda' ~·
from Appellant and threw it, Appellant did not pick it up and
r
instead ran away from the place of occurrence - s. 34 thus had
I-
E no application so far as s. 302 was concerned - Appellant Ii-
able to be convicted on basis of injuries inflicted by him -
'
Appropriate conviction would thus be under s. 326 - Custodial ~

sentence of 3 years would meet the ends of justice. I
Penal Code, 1860 - s. 34 - Applicability of - Discussed.
F
Evidence - Witness - Related witness - Appreciation of
- Held: No proposition in Jaw that relatives are to be treated as
~
untruthful witnesses -Reason to be shown when a plea of par-
tiality is raised to show that the witnesses had reason to shield
actual culprit and falsely implicate the accused. .
~

G I
According to the prosecution, Appellant and another I
accused 'S' assaulted the deceased resulting in his death. r~

While 'S' hit deceased on his head with a 'darat' (a sharp
edged tool); Appellant, the other accused, assaulted de-
H 234
RAJESH KUMAR v. STATE OF H.P. 235
-----\
)
ceased on other parts of his body with a 'danda'. The de- A
ceased received an incised injury on his scalp and five
injuries on non-vital parts of his body. The incised injury
proved fatal.
The Trial Court held that common intention to cause
death of the deceased was clearly established and ac- B
-i cordingly convicted appellant and the other accused un-
der ss.302 r/w s.34 IPC and sentenced them to life impris-
onment. Hence the present appeal.
Partly allowing the appeal, the Court c
HELD:1.1. S.34 IPC has been enacted on the prin-
ciple 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 Sec-
tion is the element of participation in action. The liability D
.._,, of one person for an offence committed by another in the
course of criminal act perpetrated by several persons
arises under s.34 if such criminal act is done in further-
ance of a common intention of the persons who join in
committing the crime. Direct proof of common intention E
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,
- j

j the prosecution has to establish by evidence, whether F
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 s.34, be it pre-
arranged or on the spur of moment; but it must necessar-
ily be before the commission of the crime. The true con-
G
.,__.1 tents of the Section are that if two or more persons inten-
tionally do an act jointly, the position in law is just the same
as if each of them has done it individually by himself. [Para
6] [242,G-H; 243,A-C]
1.2. The existence of a common intention amongst H
236 SUPREME COURT REPORTS [2008] 14 S.C.R.

A the participants in a crime is the essential element for ap-
plication 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
B actuated by one and the same common intention in order
to attract the provision. [Para 6] [243,D'.'E]
1.3. S. 34 IPC 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
C to be found in the existence of a common intention ani-
mating the accused leading to the doing of a criminal act
in furtherance of such intention. As -a result of the appli-
cation of principles enunciated in s.34, when an accused
is convicted under s.302 read with s. 34, in law it means
D that the accused is liable for the act which caused death
of the deceased in the same manner as if it was done by 1-
\-- -
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
E the common intention of all or to prove exactly what part
was taken by each of them. [Para 9] [243,H; 244,A-C]
1.4. S.34 is applicable even if no injury has been
caused by the particular accused himself. For applying
s.34 it is not necessary to show some overt act on the \-
F part of the accused. [Para 9] [244,C-D]
. 1.5. ·In the present ~ase, appellant was carrying a lathi
and had assaulted on non-vital parts of the body. The
Doctor had noticed five injuries except the incised wound
G on the scalp which are attributable to the assault done by
danda on non vital parts. The Doctor's evidence was to
the effect that the incised injury was the fatal one. Though
the aforesaid aspect cannot always be the determinative
of question as to whether s.34 IPC has application, yet in
H the present case it is found that PW 14 took away the lathi
RAJESH KUMAR v. STATE OF H.P. 237

- - \I
I from the appellant and threw it out. Thereafter the only A
role played according to the prosecution witnesses is that
he was running. He did not pick up the lathi which had
been thrown up by PW 14 and the prosecution witnesses
have accepted that he did nothing thereafter except run-
ning. In that view of the matter there is substance in the B
plea of the appellant that s.34 has no application so far as
-! s.302 is concerned. [Para 5] [242.D-G]
Ashok Kumar v. State of Punjab AIR (1977) SC 109; Ch.
Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR (1993)
SC 1899; Anil Sharma and Others v. State of Jharkhand (2004) c
5 SCC 679; Harbans Kaur v. State of Haryana (2005) 9 SCC
195 and Amit Singh Bhikamsingh Thakur v. State of
Maharashtra (2007) 2 SCC 310 - relied on.
Mahbub Shah v. Emperor AIR (1945) Privy Council 118
- referred to. D

-J 2. There is no proposition in law that relatives are to
be treated as untruthful witnesses. On the contrary, rea-
son has to be shown when a plea of partiality is raised to
show that the witnesses had reason to shield actual cul-
prit and falsely implicate the accused. No evidence has E
been led in this regard. [Para 11] [244,E-F]
3. The appellant has to be convicted on the basis of
injuries inflicted by him. Accordingly the appropriate con-
viction would be under s.326 IPC and custodial sentence
~,

of three years would meet the ends of justice. [Para 12] F
f [244,F-G]
CASE LAW REFERENCE
.. AIR (1977) SC 109 relied on Para 6
AIR (1945) Privy Council 118 referred to Para 8 G
AIR (1993) SC 1899 relied on Para 9
~
(2004) 5 sec 679 relied on Para 10
(2005) 9 sec 195 relied on Para 10
(2001) 2 sec 310 relied on Para 10
H
238 SUPREME COURT REPORTS (2008] 14 S.C.R.

A CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
t-·
No. 639 of 2001
From the final Judgment and Order dated 14.12.2000 of
the High Court of Himachal Pradesh, Shimla in Criminal Ap-
peal No. 415 of 1998
B
Shiva Pujan Singh for the Appellant.
.)---
J.S. Attri and Naresh K. Sharma for the Respondent.
I
The Judgment of the Court was delivered by r--

c DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of the Division Bench of the Himachal Pradesh
High Court holding the -appellant and one Surjit Singh guilty of
offence punishable under Section 302 read with Section 34 of
the Indian Penal Code, 1860 (in short the 'IPC') and each sen-
D tenced to imprisonment for life and to pay a fine of Rs.5,000/-
with default stipulation. By order dated 19.2.2001, the Special ?- -
Leave Petition was dismissed qua Surjit Singh.
2. Prosecution version leading to the trial is as follows:
E Both the accused are brothers. They and Ravinder Kumar
(hereinafter referred to as the 'deceased') were the residents
of Village Nangal Jarialan, Tehsil Amb District Una. On
17.01.1998, the deceased had gone to Nangal Jarialan mar-
ket for purchasing some articles where he -met Adesh Kumar
F (PW-14) and Raghubir Singh (PW-15). PW-14 told them that
\·•

~-
he wanted to go to some secluded place away from the market
for excreting. PW-15 and deceased .accompanied PW-14 on t
his scooter who drove it towards the rivulet. He stopped the
~
scooter at the road side and went towards the shrubs in the
G nallah. The deceased and PW-15 remained standing near the
scooter waiting for the arrival of PW-14 who returned after some
'r-c--
time. In the meanwhile, both the accused happened to pass
through the place on a tractor bearing registration No.PB-07-
D-6173. They saw the deceased standing on the road side.
They stopped the tractor and pounced upon the deceased by
H
RAJESH KUMAR v. STATE OF H.P. 239
[DR. ARIJIT PASAYAT, J.]

---) wielding a 'Drat' and 'Danda'. Surjit Singh hit the deceased on A
the head with the 'Drat' and Rajesh Kumar assaulted with
'Danda' and gave blows on other parts of the body. The de-
ceased started wailing whereas PWs.14 and 15 were bewil-
dered. PW-14 was able to over power Rajesh Kumar and in the
process the deceased managed to get himself freed from the B
clutches of the accused. He ran towards the field in order to
save his life with bleeding injuries. But he could manage to go
up to a distance of few feet, and fell down and became uncon-
scious.
Both the accused fled away from the scene of the occur- c
rence on the tractor before other persons could reach at the
scene of occurrence. On hearing about the incident Shri Harnam
Singh (PW-16), President, Gram Panchayat, Nangal Jarialan,
came at the spot with numerous other persons. PW-14 informed
the police at Police Station, Gagret about the incident. He also D
brought Dr. Baldev (PW-20) a private medical practitioner from
_;
the village who examined the deceased and advised that the
deceased be immediately taken to the hospital. The deceased
was thereafter taken to Civil Hospital, Gagret. The mother of
the deceased Smt. Jamna Devi (PW-1) after being informed E
about the incident, reached at Civil Hospital, Gagret at about
mid night. The deceased succumbed to his injuries on the same
day. Dr. Bhardwaj (PW-11) medically e~amined the deceased
on the same day at about 8.40 P.M., in Primary Health Centre,
•11 Gagret. He noticed that the deceased was unconscious and F
+ was not responding. He found the following injuries on the per-
son of the deceased;
1. An incised wound on the scalp present on the
occipital and parietal area 5 ems. Long. The margins G
were regular and smooth. There was no fresh
~
bleeding oozing out of the wound. This wound was
' 2cms. Deep.

2. Bruise mark 2 .cm x 2 cm present on the mastoid
area of right pinna. H
240 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 3. Lacerated wound on left hand between the index t--
finger and fourth finger. It was not bleeding.
4. Two lacerated injuries on the right leg. One injury
was 1 cm x 1/2 cm with irregular margins. It was
irregular margins. It was present 8 ems below patella
B of right leg. Second injury was 1 cm x 2 cm with
irregular margins present 6 ems below the first one.
t-
5. Lacerated wound 2cms. long skin deep present on
the left forearm on the dorsal aspect of the hand.
c Dr. N.K.Bhardwaj advised shifting of the deceased to Dis-
trict Hospital, Una for X-ray and further treatment. He had stitched
the wound on the head of the deceased and due to stitching the
margins of the wound had become irregular. He issued medico
legal certificate Ex. PF/1. According to the opinion of Dr.
D Bhardwaj the injury on the head of the deceased was sufficient
to cause his death in ordinary course of the nature. Dr. Bhardwaj ( .
also opined that the injury on the head of the deceased could 7-''
be caused by 'Drat' and other injuries found on the body of the
deceased could have been inflicted by bamboo stick.
E Shri Kai lash Chand (PW-22) who at the relevant time was
posted as Station House Officer, Police Station, Gagret re-
corded the information received by him from PW-11 Dr. N.K.
Bhardwaj in daily diary register, a copy of whi<;:h was marked
Ext. PQ. He immediately rushed to the hospital and recorded
F the statement (Ext. PJ) of PW-14 which was sent to Police Sta-
tion, Gagret for registration of the case, on the basis of which +
First Information Report No.12/98 came to be registered. The
F.1.R. later on transferred to Police Station, Amb marked (Ext.
PT) because during the investigation the place where the oc-
G currence took place was found within the jurisdiction of Police
Station, Amb. The post mortem of the dead body of Ravinder
Kumar was conducted by Dr. S.P. Kanwar (PW13), Medical
'r---- .
Officer, District Hospital, Una who found the following injuries
on his body;
H
RAJESH KUMAR v. STATE OF H.P. 241

____ ,, [DR. ARIJIT PASAYAT, J.]

1. There was a lacerated wound 6 cm x 2 cm x bone A
deep on the vault of the skull. It was on the occipito-
parietal region transversely placed. It was situated
6" from the left pinna and 5 1/2 from the right pinna
and 9 1/2" posterior to the root of the nose. Underlying
bone of the skull had sustained depressed fracture B
of the wound.
~.

2. There was contused lacerated wound 2 cm x 1 cm
x 1.5 cm on anterior aspect of the right leg, 6" above
the medial malleolus.
c
3. An abrasion 3 cm x 1 cm on the middle of the right
leg on the anterio medial aspect. It was reddish brown
in colour.
4. A contused lacerated wound 3 cm x 2 cm x 1 cm on
the cleft between the 4th & 5th fingers of the left D
~ hand.
~

5. There were multiple abrasions on the medial aspect
of the left fore-arms and wrist, which were reddish in
colour.
E
6. There was contused lacerated wound 1cm x 0.5 cm
x 0.5 cm. on the proximal 1;3rd of the right forearm on
the medial aspect.
After investigation charge sheet was placed. Since the
'..,
accused persons denied their involvement in the offence, trial F
-1
was held. Twenty three witnesses were produced to further the
prosecution version. The trial court held that the evidence of the
eye witnesses, more particularly PWs 14 & 15, clearly estab-
lished that common intention of the accused persons was to
cause death of the deceased. Accordingly conviction was re- G
corded. Before the High Court it was submitted that the evi-
-4 dence of PWs 14 & 15 do not inspire confidence. In any event
so far as the present appellant is concerned Section 34 IPC
has no application. The High Court did not find any substance
in the aforesaid stand and dismissed the appeal. Both Surjit H
242 SUPREME COURT REPORTS [2008] 14 S.C.R.

A Singh and the present appellant filed special leave petition.
Special Leave petition was dismissed so far as the Surjit Singh f---
is concerned, as noted above.
3. In support of the appeal Mr. Shiva Pujan Singh learned
counsel for the appellant submitted that the prosecution version
8 even if accepted in its totality does not make out a case for
application of Section 302 IPC read with Section 34 IPC.
4. Learned counsel for the State on the other hand submit-
ted that the conduct of the accused before and after the occur-
C rence clearly shows the existence of common intention for the
murder of the deceased.
5. It is to be noted that according to the prosecution case
Surjit Singh was armed with drat and appellant with danda and
Surjit Singh hit the deceased with the drat. So far as the appel-
D lant is concerned he was carrying a lathi and had assaulted on
non-vital parts of the body. The Doctor had noticed five injuries
except the incised wound on the scalp which are attributable to
the assault done by danda on non vital parts. The Doctor's evi-
dence was to the effect that the injury No. 1 was the fatal one.
E Though the aforesaid aspect cannot always be the determina-
tive of question as,to whether Section 34 IPC has application,
yet in the pre~ent case we find that PW 14 took away the lathi
from the appellant and threw it out. Thereafter the only role played
according to the prosecution witnesses is that he was running.
F He did not pick up the lathi which had been thrown up by PW 14
and the prosecution witnesses have accepted that he did noth- '.
'
ing thereafter except running. In that view of the matter there is +
substance in the plea of learned counsel for the appellant that
Section 34 has no application so far as Section 302 is con-
G cerned.
6. Section 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 dis-
tinctive feature of the Section is the element of participation in
H action. The liability of one person for an offence committed by
RAJESH KUMAR v. STATE OF H.P. 243
[DR ARIJIT PASAYAT, J.]

--·'+- another in the course of criminal act perpetrated by several A
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 sel-
dom available and, therefore, such intention can only be inferred
from the circumstances appearing from the proved facts of the B
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 c
34, be it pre-arranged or on the spur of moment; but it must
necessarily be before the commission of the crime. The true
contents of the Section are that if two or more persons inten-
tionally 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
D
Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the exist-
~
ence of a common intention amongst the participants in a crime
_J is the essential element for application of this Section. It is not
n_ecessary that the acts of the several persons charged with
commission of an offence jointly must be the same or identi-
cally similar. The acts may be different in character, but must E
have been actuated by one and the same common intention in
order to attract the provision.

7. As it originally stood, Section 34 was in the following terms:

"When a criminal act is done by several persons, each of F
'-:
·1
' such persons is liable for that act in the same manner as
if the act was done by him alone."
8. In 1870, it was amended by the insertion of the words
"in furtherance of the common intention of all" after the word
G
"persons" and before the word "each", so as to make the object
of Section 34 clear. This position was noted in Mahbub Shah
_...__,
4
v. Emperor (AIR 1945 Privy Council 118).
9. The Section does not say "the common intention of all",
nor does it say "and intention common to all". Under the provi- H
244 SUPREME COURT REPORTS [2008] 14 S.C.R.

A sions of Section 34 the essence of the liability is to be found in f--
the existence of a common intention animating the accused lead-
ing to the doing of a criminal act in furtherance of such intention.
As a result of the application of principles enunciated in Sec-
tion 34, when an accused is convicted under Section 302 read
B 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
C the common intention of all 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), Sec-
tion 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 act on the part of the accused.
0
10. The above position was highlighted recently in Anil
Sharma and Others v. State of Jharkhand [2004 (5) SCC 679],
in Harbans Kaur v. State of Haryana [2005(9) SCC 195] and
Amit Singh Bhikamsingh Thakur v. State of Maharashtra
E [2007(2) sec 310J.
11. There is no proposition in law that relatives are to be
treated as untruthful witnesses. On the contrary, reason has to
be shown when a plea of partiality is raised to show that the
witnesses had reason to shield actual culprit and falsely impli-
F cate the accused. No evidence has been led in this regard. 1•
'

12. The appellant has to be convicted on the basis of~nju
ries inflicted by him. According to us the appropriate conviction
would be under Section 326 IPC and custodial sentence of three
G years would meet the ends of justice.
13. The appellant who has been released on bail shall sur-
render to custody forthwith to serve remainder of sentence, if any.
14. The appeal is allowed to the aforesaid extent.
H B.B.B. Appeal partly allowed.