Criminal Appeal No. 175 of 1966

2nd August, 1967.

Petitioner Counsel: Rajni Patel with S. B. Sukthankar, s: S. R. Chitnis, Hon. Asstt. to Govt. Pleader, for the State.

Cases Cited:
Kripal v. State of Uttar Pradesh, (1954) AIR 1954 SC 706 (V 41),1954 Cri LJ 1757 [Para 17]
Mahbub v. Emperor, (1945) AIR 1945 PC 118 (V 32),47 Bom LR 941,46 Cri LJ 689 [Para 9]
Sultan v. The Crown, (1931) AIR 1931 Lah 749 (V 18),ILR 12 Lah 442-32 Cri LJ 1219 [Para 16]

JUDGMENT

TARKUNDE, J. :-A somewhat intriguing question of law has arisen in this appeal. The question relates to the application of Section 34 of the Indian Penal Code to a case where one of the offenders acts in excess of the common intention of all the offenders.

2. The three appellants who have filed this appeal were accused Nos. 1 to 3 in a trial conducted by the Sessions Judge of Sholapur. Two charges were framed against them. One charge was under Sections 323 and 324 read with Section 34 I.P.C for having caused simple hurt to four persons including witnesses Yogappa and Shivshankar Bhogade. The other charge was under Sec. 307 read with Section 34 I.P.C., for having attempted the murder of witness Sidramappa. The learned trial Judge found the three accused guilty of both the charges. For the offence under Sections 323 and 324 read with Section 34 I.P.C. he sentenced each of them to rigorous imprisonment for one year. For the offence under Section 307 read with Section 34 I.P.C. he sentenced accused No. 3 to rigorous imprisonment for eight years and accused Nos. 1 and 2 to rigorous imprisonment for five years each. The sentences against each of the accused were to run concurrently.

3. The material facts which constituted the case of the prosecution are no longer in dispute. Accused No. 1 is the father of accused Nos. 2 and 3. They were on terms of hostility with three brothers Vishwanath, Revansidha and Shivshankar, belonging to Bhogade family. The accused as well as the Bhogade brothers used to reside in the same locality in Sholapur. At the time of the offence Shivshankar Bhogade, his brother-in-law Yogappa and some other relations of the Bhogade family were sitting on Katta (platform) of a Maruti temple which was not far from the house of the accused. At that time the three accused came running to the Maruti Katta from their house. Accused No. 1 was armed with a stick and accused Nos. 2 and 3 were armed with Knives. On coming to the Maruti Katta accused No. 1 gave stick blows to Shivshankar Bhogade. Yogappa intervened, whereupon accused No. 3 gave a knife blow on Yogappa's head. Accused No. 2 also rushed at Yogappa and gave him knife blows which Yogappa received on

his arms. One Shantayya Swami tried to intervene, but he got a knife blow on his finger Accused No. 1 pushed Yogappa from the Katta as a result of which be fell down on the ground. Accused No. 1 then gave stick blows on Yogappa's back. In the mean time, Sidramappa, Revansidha Bhogade and some others came running to the Maruti temple. Revansidha Bhogade caught hold of accused No. 2 and asked him what he was doing. Accused No. 1 then gave a stick blow on Sidramappa's head. Accused No. 3 stabbed Sidrammappa in the chest. Sidrammappa shouted that he was killed. Revansidha Bhogade left accused No. 2 and came near Sidramappa Accused Nos. 1 to 3 then ran away towards their house.

4. As a result of this attack Shivshankar Bhogade and Yogappa received a number of injuries Each of them was treated as an indoor patient in a hospital for 11 days after the incident. The injuries received by them did not amount to grievous hurt. Sidramappa had an injury across the scalp of the head, a superficial incised wound across the right costal area and a deep punctured wound on the right side of the chest The punctured wound in the chest had penetrated to a depth of at least 3½" Sidramappa was operated upon soon after the incident. He was an indoor patient in the hospital for a period of 55 days. According to the medical evidence led in the case, the punctured wound received by Sidramappa was sufficient to cause death and that he would have died if he had not been immediately operated upon.

5. The above facts were established by abundant evidence led by the prosecution and were not disputed by Mr. Rajni Patel, who appeared before us on behalf of the accused. The conviction of the accused under the charge under Sections 323 and 324 read with Section 34 I.P.C was also not challenged by Mr. Rajni Patel. His challenge was confined to the conviction of accused Nos. 1 and 2 under Section 307 read with Section 34 I.P.C. According, to Mr. Rajni Patel, accused No. 3 alone should have been convicted for the attempted murder of Sidramappa.

6. In support of this contention Mr. Rajni Patel argued, in the first place, that the accused cannot be held to have entertained any common intention of causing hurt to Sidramappa. Sidramappa came to the Katta of the Maruti temple in the midst of the affray Mr. Rajni Patel urged that the accused may not have known that Sidramappa was likely to come to the Katta and intervene in the quarrel. Moreover, accused No. 2 did not participate in the assault in Sidramappa as he was held at that time by Revensidha Bhogade. Hence according to Mr. Rajni Patel, in the absence of any common intention to cause hurt to Sidramappa, only accused Nos. 1 and 3 should have been convicted for the injuries individually inflicted by them on Sidramappa. In the alternative Mr. Rajni Patel argued that the only common intention which can be attributed to the accused in respect of Sidramappa was to give him a beating and that the conviction of accused Nos. 1 and 2 under Section 307 read with Section 34 I.P.C. was not justified.

7. We are of the view that the assault in Sidramappa cannot be considered in isolation from the rest of the incident, as Mr. Rajni Patel wants us to do. The three accused, armed with a stick and two knives, rushed from their house towards the Katta of the Maruti temple where Shivshankar Bhogade, his brother-in-law Yogappa and some others were sitting. Their intention was obviously to cause injuries to Bhogade brothers and whoever else tried to intervene. Since accused Nos. 2 and 3 were armed with knives, it is safe to hold that the common intention of the three accused was to cause grievous hurt to Bhogade brothers and those who came to help them. The attack began with stick blows given by accused No. 1 to Shivshankar Bhogade. As soon as Yogappa intervened to rescue Shivshankar Bhogade, accused No. 3 gave a knife blow on his head and accused No. 2 gave two knife blows which he received on his hands. The subsequent attack on Sidramappa was a part of the same incident. It must follow that the common intention of the accused was to cause grievous hurt to him also The fact that accused No. 2 was held by Revansidha Bhogade at the time when Sidramappa was attacked cannot mean that accused No. 2 was not an active participant in the attack on Sidramappa. The attack on Sidramappa was, in pursuance of the common intention of the accused to cause grievous hurt to Bhogade brothers and those who came to their help.

8. We are, however, inclined to accept Mr. Rajni Patel's contention that the attack on Sidramappa cannot be held to have been made in furtherance of a common intention to murder him. The knife blow of accused No. 3 which caused a deep punctured wound in the chest of Sidramappa was the last act in the offence. Evidence shows that as soon as that blow was given, Sidramappa shouted that he was killed and the accused ran away towards their house.

As the attack did not continue after the above serious injury was inflicted on Sidramappa, it would not be proper to hold that the accused had the common intention of causing fatal injuries to their victims. As observed by the Privy Council in Mahbub v. Emperor, 47 Bom LR 941 : (AIR 1945 PC 118), the inference of common intention within the meaning of the term in Sec. 34 of the Indian Penal Code should never be reached unless it is a necessary inference deducible from the circumstances of the case."

10. Mr. Rajni Patel argued that the common intention which can be attributed to the accused as a necessary inference deducible from their conduct is that they intended

to give a beating to Bhogade brothers and their supporters, and not that they intended to cause them grievous hurt. It appears to us that the result of this case would not be materially different even if this argument of Mr. Rajni Patel were accepted. Accursed Nos. 2 and 3 were armed with knives and this fact was known to their father, accused No. 1. Each of them must, therefore, be held to have known that grievous hurt was likely to be caused if they acted in furtherance of their common intention, which on the argument of Mr. Rajni Patel was to give a beating to their opponents. Section 322 of the Indian Penal Code which defines what is meant by "voluntarily causing grievous hurt" lays down that whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said voluntarily to cause grievous hurt. A reference may then be made to Section 35 of the Indian Penal Code which says :

"Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention."

It follows as a combined result of Ss. 322 and 35 that if the accused, despite their knowledge that grievous hurt was likely to be caused and in furtherance of their intention to give a beating for their opponents, and if grievous hurt was actually inflicted by one of them acting in furtherance of that intention, all of them would be guilty of an offence under Section 326 I.P.C. We must however, add that we find that the common intention of the accused in this case was to cause grievous hurt to their opponents and not merely to give them a beating. This is because the circumstances of the case make it clear that the accused intended what they knew was likely to happen.

11. Our finding that the common intention of the accused was to cause grievous him and that it was not their common intention to inflict fatal injuries leads to the question of law about the scope of S. 34 of the Indian Penal Code to which a reference was made at the commencement of this judgement. On our finding, accused No. 1 and 2 must be acquitted of the offence under S. 307 read with S. 34, I.P.C. for the injury inflicted by him on Sidramappa, accused No. 3 is clearly guilty under S. 307. No separate charge was framed against accused No. 3 under Section 307 simpliciter. But that does not prevent us from convicting accused No. 3 under that section. We find, and this was conceded by Mr. Rajani Patel, that no prejudice has been caused to accused No. 3 on account of the absence of a separate charge under Section 307 against him. Now, the injury which accused No. 3 inflicted on Sidramappa, and which was found to have been sufficient in the ordinary course of nature to cause death, was the only injury which could be held to have caused grievous hurt to him. In respect of one and the same injury inflicted by accused No. 3 can we convict accused No. 3 under Section 307 and accused Nos. 1 and 2 under S. 326 read with Section 34 ? If the terms of Section 34 are held not to warrant that course, we would be left with two alternatives, both of which are unsatisfactory. One alternative is that we can convict the accused for their individual acts. In that case accused No. 3 can be convicted under section 307 and accused No. 1 under Section 323 for the injuries caused to Sidramappa. Accused No. 3 would have to be acquitted altogether in respect of the assault on Sidramappa. The other alternative is to convict all the accused under Section 326 read with Section 34. In that case accused No. 3 would have to be acquitted of the offence under Section 307 which he had undoubtedly committed.

12. Section 34 lays down :

"When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

It has been, made clear by Section 33 that the word "act" denotes a single act as well as a series of acts. Section 34 thus defines the liability of persons for a criminal act or series of acts jointly done by them in furtherance of their common intention. Our finding in the present case implies that the intention of accused No. 3 when he gave the, knife blow to Sidramappa exceeded the intention which was common to all the accused and also that the act which he did. In pursuance of his intention was in excess and went beyond the act which he would have done if he had acted strictly in furtherance of the intention common of all the accused. It follows that accused Nos. 1 and 2 cannot be held liable for the act of accused No. 3 in the same manner as if it were done by each of them alone. Can we hold them liable for that part of the act of accused No. 3 which corresponded with the common intention of them all ?

13. The question involved can arise in several other cases. A simple illustration may bring out what exactly is in issue. Suppose A and B decide to cause grievous hurt to C. With that intention A catches hold of C so as to enable B to stab C with a knife. B exceeds the common intention, stabs C in the heart with the intention of causing his death, and C dies as a result of the injury. In this illustration B is clearly guilty of murder under Section 302 I.P.C. If A were to be held guilty for his individual act, he can be convicted either of assault under S. 352, I.P.C. or of causing simple hurt under Section 323 I.P.C.

It is, however, clear that the offence actually committed by A was much more serious Can he be convicted for causing grievous hurt under Section 326 read with S. 34 I.P.C. ?

14. We are of the view that the answer to the above question must be in the affirmative. In the above illustration B acted in furtherance of the intention which was common to himself and A in so far as he caused grievous hurt to C. His 'individual intention of causing the death of C included, although it exceeded, the common intention of himself and B of causing grievous hurt to C. Similarly, his act of inflicting a fatal blow on C was in furtherance of the common intention, in so far as he thereby caused grievous hurt to C. In other words. the offence of murder individually committed by B included an offence of causing grievous hurt, and it would be quite legitimate to convict B under Section 302 and to convict both A and B under Section 326 read with Section 34. In view of B's conviction under Section 302, however, his conviction under Section 326 read with Section 34 would be redundant. It would, therefore, be proper to convict B under Section 302 and A under Section 326 read with Section 34.

15. On the facts found by us in the present case, accused No. 3 can be convicted under Section 307 for the attempted murder of Sidramappa, and the three accused including No. 3 can also be convicted under Section 326 read with Section 34 for causing grievous hurt to Sidramappa. Since the conviction of accused No. 3 under Section 326 read with Section 34 is redundant, the proper order would be to convict accused. No. 3 under Section 307 and accused Nos. 1 and 2 under Section 326 read with Section 34 I.P.C.

16. Our attention was invited by Mr. Rajani Patel to certain observations found in the judgement In Sultan v. the Crown, ILR 12 Lah 442 : (AIR 1931 Lah 749). It was held in that case that the common intention of the three accused, who had appealed to the High Court, was merely to carry away a girl who had been married to one of the accused and not to cause injuries to any person. In the affray which resulted, however, one of the accused gave a Lathi blow which killed the girl and the other two inflicted minor injuries upon the girl's relatives. Since it was found that the accused had no common intention to cause Injuries to any person, the High Court held the accused responsible for their individual acts, with the result that one of them was convicted under Section 302 and the other two under Section 323 I.P.C. In the judgement the following observation was made with reference to the effect of Section 34 :

"The liability for a criminal act done by several persons in furtherance of a common intention is allotted to each of such persons as if he alone and unaided had done that act. In such circumstances each of such persons is guilty of the one offence and in my judgement it is not possible to so grade this offence as to hold say in the case of a murderous assault, committed in furtherance of a common intention, that some are guilty of murder and others only of causing grievous hurt."

In view of the finding of the Court that the accused had no common intention to inflict injuries on any person, the above observations were clearly obiter. We also find that the observations were made in a very different context. The Court was not concerned in that case with a situation in which one of the accused had acted in excess of the common intention of all the accused.

17. The approach which we have adopted in the present case derives support from the decision of the Supreme Court in Kripal v. State of Uttar Pradesh, AIR 1954 SC 706. The decision of the Supreme Court in that case WRS very similar to the decision which we propose to give in the present case, although the judgement of the Supreme Court does not present at length the reasons in support of their decision. In that case the Supreme Court was concerned with appeals filed by three persons Sheoraj, Kripal and Bhopal. One of the victims of their joint attack was the deceased Jiraj. Three injuries were found to have been inflicted on Jiraj by the appellants. Sheoraj had given a Lathi blow on the legs of Jiraj, Kripal had given a stroke on the ear of Jiraj by means of a spear, and Bhopal had inflicted a fatal injury on Jiraj by means of another. spear. It was found that only simple hurt was caused to Jiraj by the blows inflicted by Sheoraj and Kripal and that only Bhopal had caused the death of Jiraj by inflicting a fatal injury on him. The High Court of Uttar Pradesh, from whose decision appeals were taken to the Supreme Court, had held that the common intention of the three accused was to kill the deceased Jiraj. That view, however, was not accepted by the Supreme Court. The Supreme Court observed in this connection :

"We are, therefore, unable to upheld the view taken by the High Court that any common intention to kill the deceased can be attributed to the three appellants. Therefore, the only common intention that can be attributed to all the three appellants in so far as the assault on Jiraj is concerned is the common intention to beat Jiraj with the weapons in their hands, which were likely to produce grievous injuries. In this view, therefore all the three would be guilty in respect of their assault on Jiraj for an offence under Section 326 I.P.C. while Bhopal alone would be guilty in respect of the offence under S. 302 I.P.C. It follows from that the conviction of both Kripal and Sheoraj under Section 302. I.P.C. must be set aside but that of Bhopal has to be maintained." In the result the Supreme Court upheld the conviction of Bhopal under Section 302 I.P.C.

set aside the conviction of Kripal and Sheoraj under S. 302 I.P.C. but convicted them under Section 326 I.P.C.

18. In appreciating this decision of the Supreme Court it must be noticed that neither Kripal nor Sheoraj had caused any grievous hurt to the deceased Jiraj. If they were to be held responsible for their individual acts, they could not have been convicted under S. 326, I.P.C. The only injury which caused grievous hurt to Jiraj was the injury which resulted in his death. That injury was inflicted by Bhopal, who had clearly acted in excess of the common intention of himself and of Sheoraj and Kripal. This means that the act of Bhopal for which he was convicted under Section 302 I.P.C. was considered as the act of Sheoraj and Kripal in so far as it caused previous hurt to Jiraj, and for this act of causing grievous hurt Sheorai and Kripal were convicted under Section 326. What is more, their Lordships made it clear in their judgement that while Bhopal alone was guilty under Section 302 I.P.C. "all the three (i.e. Including Bhopal) would be guilty in respect of their assault on Jiraj for an offence under S. 326 I.P.C." This observation clearly implies that, according to the Supreme Court the offence of murder committed by Bhopal included the minor offence of causing grievous hurt which he committed. In furtherance of the common intention of himself and of Sheoraj and Kripal.

19. We must add that it appeared to us at one stage that our decision in this case can perhaps be supported by the terms of Section 38 I.P.C. We, however, came to the conclusion that S. 38 covers a different situation. Section 38 lays down :

"Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act."

The Section is followed by an illustration which is as follows :

"A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B, having ill-will towards 2 and intending to kill him, and not having been subject to the provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z's death. B is guilty of murder, and A Is guilty only of culpable homicide."

It appears to us from the terms of S. 38 as well as of the illustration that the section applies where a criminal act jointly done by several persons and the several persons have different intentions or states of knowledge in doing the joint act. In the case before us the knife blow inflicted by accused No. 3 on Sidramappa, in so far as it caused grievous hurt, was a part of the joint criminal act of the three accused and was done with the common Intention of causing grievous hurt. In so far as accused No. 3 exceeded that intention and caused an injury which was sufficient in the ordinary course of nature to cause death, his act was an individual act and could not be regarded as an act committed by him jointly with the other accused. Section 38, therefore, has no application to the facts of this case.

20. In the result the conviction of all the three accused under Sections 323 and 324 read with Section 34 I.P.C. and the sentences awarded to them for that offence are confirmed. The conviction of all accused under Section 307 read with S. 34 I.P.C. and the sentences awarded to them for that offence are set aside. Instead, accused No. 3 is convicted under Section 307 I.P.C. and sentenced to rigorous imprisonment for eight years. Accused Nos. 1 and 2 are convicted under Section 326 read with Section 34 I.P.C. and are sentenced to rigorous imprisonment for three years each. The sentences in the cast of each of the accused will be concurrent. Subject to this modification, the appeal is dismissed.

Order Accordingly