LAXMANJI AND ANR. v. STATE OF GUJARAT

Citation: [2008] 17 S.C.R. 171

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, MUKUNDAKAM SHARMA

Case summary

LAXMANJI AND ANR. v. STATE OF GUJARAT.pdf

Judgment text

[2008] 17 $. C. R. 171 LAXMANJI AND ANR. -~ v. STATE OF GUJARAT (Criminal Appeal No. 1972 of 2008) DECEMBER 5, 2008 [DR. ARiJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ. ] \ Penal Code, 1860: s. 302 rlw s. 34 and s. 326 rlw s. 34 - Four accused - ~ Accused nos. 2 and 3, who were unarmed, caught hold of the victim while accused no. 1, who was carrying a knife, inflicted knife blows on right abdomen and thigh of the victim - Victim taken to hospital where he died - Conviction of accused nos. 2 and 3 u/s. 302 rlw s. 34 - Justification of - Held: Not justified - Accused nos. 2 and 3 cannot· be attributed any common intention to cause the murder of the victim - Hence, appropriate conviction would be under s. 326 rlw s. 34 and not uls. 302 rlw s. 34. s. 34 - Applicability of - Held: In order to bring a case under s. 34 it is not necessary that there must be prior conspiracy or pre-meditation - Common intention can be formed in the course of occurrence - To apply s.

34, apart from the fact that there should be two or more accused, two i 4- factors must be established:(i) common intention and (ii) participation of accused in commission of offence - If common intention is proved, but no overt act is attributed to the individual accused, s. 34 will be attracted as essentially it involves vicarious liability - But if participation of the .. accused in the crime is proved and common intention is .. absent, s. 34 cannot be invoked. "-1 The prosecution case was that the four accused went ~ --t 171 ,. ,. to the house of the victim whereafter accused no. 2 and 3, who were unarmed, caught hold of the victim While -r accused no. 1, who was carrying a knife, inflicted knife ~ blows on the right abdomen as also the thigh of the victim. The victim was taken to the hospital where he succumbed to his injuries. ,... ,, ~ The trial court convicted accused nos. 1, 2 and 3 under s. 302 r/w 34 IPC but acquitted accused no. 4. The -1 conviction of accused nos.

1 to 3 was upheld by High Court. The present appeal has been filed by accused nos. 2 and 3. Allowing the appeal, the Court ~ HELD: 1. 1. In order to bring a case under s. 34 it is not necessary that there must be a prior conspiracy or pre-meditation. The common intention can be formed in the course of occurrence. To apply s. 34 apart from the ·)fact that there should be two or more accused, two factors must be established:(i) common intention and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is ·. attributed to the individual accused, s. 34 will be attracted • as essentially it involves vicarious liabili,ty. But if ~ participation of the accused in the crime· is proved and ·- ~ common intention is absent, s. 34 cannot be invoked. [Para 1O] [175-D-F] I -+- 1. 2. The factual scenario goes to show that the appellants cannot be attributed any common intention to cause the murder of the deceased. In the background ~.

facts, the appropriate conviction would be s. 326 read with s. 34 IPC. Custodial sentence of three years would meet the ends of justice. [Paras 10 and 11] [175-D-Gl r· ' Jai Bhagwan v. State of Haryana AIR 1999 SC 1083, )- ;--, relied on. Case Law Reference: -r AIR 1999 SC 1083 relied on ·Para 10 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1972 of 2008. From the Judgment and final Order dated 17. 1. 2008 of the High Court of Gujarat at Ahmadabad in Criminal Appeal Nos. 259 of 301 of 1999. \ Shankar Divate for the Appellants. Hemantika Wahi and Mamta Tushir for the Respondent. _.. , The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of the Division Bench of the Gujarat High Court upholding the conviction of the accused appellant nos. 1 to 3. Four persons faced trial and the trial court directed acquittal of accused No. ... ; 4.

All the accused persons were charged for commission of offence punishabJe under Section 302 read with Section 34 of the Indian Penal Code, 1860 ( in short 'IPC'). Three appeals were filed before the High Court. Two of them were by accused No. 1 (Criminal Appeal No. 259/99) and the other Criminal Appeal No. 301 of 1999 by accused nos. 2 and 3. Criminal Appeal 380/1999 was preferred by the State questioning acquittal of original accused No. 4. \ 4- 3. The prosecution version as unfolded during trial is as follows: 4. On 26/10/1997, at around 15. 30 hours, Nainaben, daughter of deceased -Bhamraji, had gone to fetch water from a nearby public tap. As there was no supply of water in the said tap at the relevant point of time, Nianaben went to the house - [DR. ARIJIT PASAYAT, J. ] accused nos. 1, 2 and 3 while directed acquittal of accused _,_ No. 4. As noted above three appeals were filed before the High Court. 9. The High Court dismissed all . the appeals.

When the matter was placed for grant of leave to file appeal, the petition 8 was dismissed qua Chandan singh accused No. 1. Therefore present appeal relates to other two accused persons. Learned counsel for the appellants submitted that A 2 was not armed. It is therefore submitted that the appellant cannot be held guilty of offence punishable under Section 302 read with Section 34 IPC. Learned counsel for the State on the other supported the judgment. 10. The basic question arises for consideration is whether Section 34 can be applied so far as the appellants are concerned. The factual scenario as noted above goes to show 0 that the appellant cannot be attributed any common intention to cause the murder of the deceased. In order to bring a case under Section 34 it is not necessary that there must be a prior conspiracy or pre-meditation. The common intention can be formed in the course of occurrence.

To apply Section 34 apart from the fact that there should be two or more accused, two factors must be established :(i) common intention and (ii) participation . of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially , it involves vicarious liability. But if participation of the accused _.. - in the crime is proved and common intention is absent, section 34 cannot be invoked. (See Jai Bhagwan VS. State of Haryana, AIR 1999 SC 1083). 11. In the background facts, the appropriate conviction would be Section 326 read with Section 34 IPC. Custodial sentence of three years would meet the ends of justice. 12. The appeal is allowed with the above observation. B. B. B. Appeal allowed.